Gustavia Home, LLC v. Perez et al
ORDER granting 22 Plaintiff's Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 4/5/2017. (Weitzer, Iliza)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GUSTAVIA HOME, LLC,
MEMORANDUM AND ORDER
- against –
JOSE A. PEREZ; NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; NEW YORK
CITY TRANSIT ADJUDICATION BUREAU; NEW
YORK CITY PARKING VIOLATIONS BUREAU;
and JOHN DOE “1” through “12”, said persons or parties
having or claimed to have a right, title or interest in the
Mortgaged premises herein, their respective names are
presently unknown to plaintiff,
GLASSER, Senior United States District Judge:
In this action, plaintiff Gustavia Home, LLC (“Gustavia”), is seeking to foreclose on a
mortgage made by defendant Jose A. Perez (“Perez”) covering premises located at 25-42 100th
Street, East Elmhurst, New York 11369 (the “Premises”). Also named in the complaint as
defendants are creditors whose liens on the premises, if any, are subject and subordinate to
Gustavia’s mortgage. Jurisdiction is proper under 28 U.S.C. § 1332. 1 Gustavia’s unopposed
motion for summary judgment against defendant Perez is currently before the Court. For the
foregoing reasons, the motion is GRANTED.
Gustavia is a Florida LLC with its principal place of business in Florida. Complt. at ¶ 2; ECF
22-7, Plaintiff’s Local Rule 56.1 Statement of Undisputed Facts (“56.1 St.”) at ¶¶ 1, 2. The
defendants are a citizen of New York and New York corporations with their principal places of
business in New York. Complt. at ¶¶ 3-7. The amount in controversy exceeds $75,000.
Complt. at ¶ 10.
The following facts are undisputed. On December 9, 2005, defendant Perez executed a
mortgage on the Premises (the “Mortgage”). ECF 22-1, Affidavit of Jared Dotoli (“Dotoli Aff.”)
at ¶ 3; see also ECF 1, Complaint (“Complt.”), at ¶ 12 (attached with exhibits to the Dotoli Aff.
at Ex. A). The Mortgage was recorded in the Office of the Registrar of the City of New York,
County of Queens, on January 4, 2006. Dotoli Aff. at ¶ 3. Perez issued the Mortgage to the New
Century Mortgage Corporation to secure a December 9, 2005 note for $84,000 (the “Note”).
56.1 St. at ¶ 3; Dotoli Aff. at ¶ 3; Complt. at Ex. C. The Mortgage and Note were assigned to
Gustavia on December 27, 2015. 56.1 St. at ¶ 4; Dotoli Aff. at ¶ 4. The assignment was
recorded in the Office of the Registrar of the City of New York, County of Queens, on January
11, 2016. Id. at ¶ 4; Complt at Ex. D.
The Note required Perez to make monthly payments in the amount of $780.97 until
January 1, 2036, the maturity date. Id. at Ex. C. If Perez failed to make a payment by the
fifteenth day of the month, and if the note holder met certain notice requirements, Perez could be
immediately liable for the entire unpaid balance of indebtedness. Id. On December 1, 2008,
Perez ceased to make payments due on the Note, and has failed to make payments since. Dotoli
Aff. at ¶ 7. In writing on October 7, 2015, Gustavia notified Perez that his failure to cure the
arrears within 30 days would result in Gustavia declaring the outstanding principal balance, and
accrued interest thereon, immediately due. Id. at ¶ 10; 56.1 St. at ¶ 5; Complt. at Ex. E. On
October 28, 2015, Gustavia sent the required N.Y. Real Prop. Acts. Law § 1304 notice, and
waited the minimum 90 days required to initiate legal proceedings. Id.; Dotoli Aff. at ¶ 11.
Gustavia commenced this action on March 1, 2016, seeking (1) the unpaid principal, accrued
interest, and late charges under the Note, totaling $149,966.66 as of September 1, 2015, and (2)
attorney’s and other fees. Complt at ¶ 21; 56.1 St. at ¶ 11; Dotoli Aff. at ¶ 13. Perez, appearing
pro se, answered the Complaint on July 16, 2016. ECF 16, Answer (“Ans.”). 2
On November 1, 2016, Gustavia moved for summary judgment, to which it attached the
required Local Civil Rule 56.2 Notice to Pro Se Litigant form. ECF 22, 22-8. 3 Over the next
four months, Magistrate Judge Gold granted Perez numerous extensions of time to retain counsel
and oppose the motion, held a number of in-person conferences, and connected Perez with a pro
se legal assistance group. ECF Entries dated Nov. 22, 2016, Dec. 19, 2016 and Dec. 22, 2016.
Finally, the Magistrate ordered Perez to submit a letter by March 13, 2017 indicating whether he
would oppose this motion and if so, giving him until April 10, 2017 to do so. ECF 35. Perez did
not submit the required letter by March 13, 2017. On March 21, 2017, Magistrate Judge Gold
recommended that the summary judgment motion be deemed submitted and unopposed. ECF
Entry Dated Mar. 21, 2017. The motion is now before this Court.
While the Court is sympathetic to Perez’s challenges obtaining appropriate legal counsel,
it is also mindful that Plaintiff’s motion has been held in abeyance for over five months, and that
Perez was given ample opportunity to obtain counsel or oppose the motion pro se. He did not
pursue the assistance of the pro se legal assistance group to which he was referred by Magistrate
Judge Gold. Considering this history, and in the interest of fairness to the Plaintiff, the motion is
deemed submitted and unopposed.
The other defendants never appeared and the Clerk entered default against them on September
2, 2016. ECF Entry dated Sept. 2, 2016.
Gustavia has duly and expeditiously served on Perez various relevant documents and orders
filed in this case. ECF 19, 22-9, 27, 34. Additionally, Magistrate Judge Gold’s chambers has
regularly mailed minutes and the current docket sheet to Perez. ECF Entries dated Sept. 20,
2016, Nov. 22, 2016, Dec. 22, 2016, Feb. 7, 2017 and Feb. 27, 2017. Needless to say, Perez has
been kept apprised of the progress of this case and of his rights as a pro se litigant.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
§ 56(a). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant
such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). In deciding a motion for summary judgment, the court must construe the facts
in the light most favorable to the nonmoving party and resolve all ambiguities and draw all
reasonable inferences against the movant. Id. at 255; see also Regency Sav. Bank, F.S.B. v.
Merritt Park Lands Assoc., 139 F.Supp.2d 462, 465 (S.D.N.Y. 2001).
Under New York law, summary judgment is appropriate in a mortgage foreclosure action
if the note and mortgage are produced, “along with proof that the mortgagor has failed to make
payments due under the note.” Builders Bank v. Warburton River View Condo LLC, 09-cv5484, 2011 WL 6370064 at *2 (S.D.N.Y. Dec. 20, 2011); see also Eastern Sav. Bank v. Bowen,
13-CV-3633, 2016 WL 2888997 at *4 (E.D.N.Y. May 17, 2016) (collecting cases). Here,
Gustavia has submitted the Note and Mortgage, and has submitted documents proving that the
Mortgage was assigned to it. Complt. at Exhs. B, C. Gustavia’s principal, Jared Dotoli, submits
a sworn affidavit in which he states that “Defendant breached his obligations under the Note . . .
by failing to pay the regular monthly payment which came due on December 1, 2008 . . . and all
subsequent payments.” Dotoli Aff., at ¶ 7. Because Perez failed to tender the required
payments, the Note entitles Gustavia to accelerate and demand repayment of the full amount due,
plus interest. This evidence is sufficient to establish Gustavia’s prima facie case.
“Once plaintiff has established its prima facie case by presenting the note, mortgage, and
proof of default, the mortgagee has a presumptive right to foreclose, which can only be
overcome by an affirmative showing by the mortgagor.” Eastern Sav. Bank, FSB v. Rabito, 11-
CV-2501, 2012 WL 3544755 at *5 (E.D.N.Y. Aug. 16, 2012) (quotations and citations omitted);
see also Bowen, 2016 WL 2888997 at *4 (“When a plaintiff meets its prima facie burden and the
defendant does not contest those facts, a presumptive right to collect the overdue amount exists,
which can only be overcome by evidence demonstrating the existence of a meritorious
Here, the motion is unopposed, and Perez has not offered any evidence to overcome this
presumption. The only defenses on the record appear in the Answer’s “Defense” section, in
which Perez expresses an interest in settling the case and states that he did not know the
Mortgage and Note had been assigned to Gustavia. Ans. at p. 3. Even if those defenses were
supported by evidence, they are insufficient to overcome Gustavia’s prima facie case. “[A]
mortgagor is bound by the terms of his contract as made and cannot be relieved from his default,
if one exists, in the absence of waiver by the mortgagee, or estoppel, or bad faith, fraud,
oppressive or unconscionable conduct on the latter's part.” Nassau Trust Co. v. Montrose
Concrete Prods. Corp., 56 N.Y.2d 175, 1269 (1982) (quotations omitted). Perez has not raised a
general issue of material fact or a legitimate affirmative defense to overcome summary
For the reasons stated herein, Plaintiff’s motion for summary judgment is granted.
Plaintiff is directed to submit supporting documentation and calculations to enable the Court to
assess the amount currently due and outstanding. Plaintiff is also directed to submit a proposed
judgment, order of foreclosure, and any other papers necessary for their implementation.
Finally, Plaintiff is ordered to serve on Perez a copy of this Memorandum and Order, and copies
all future documents filed in this case.
Brooklyn, New York
April 5, 2017
I. Leo Glasser
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?