Wash. Mut. Bank v. Schenk, N.Y. App. Div., Judgment, Law, casemine.com

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Docket Number

Attorney(S)

Carolyn Mary Schenk, named herein as Carolyn Schenk, Staten Island, N.Y., appellant pro se. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent.

Judges

Thomas A. Dickerson
Leonard B. Austin

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Smart Summary

Factual and Procedural Background

This appeal arises from an action to foreclose a mortgage brought by Washington Mutual Bank against defendant Carolyn Schenk. The defendant appealed from two orders of the Supreme Court, Richmond County, dated October 27, 2009. The first order, in effect, granted summary judgment to the plaintiff on the complaint as asserted against Schenk and struck her answer. The second order denied Schenk's motion, among other relief, for recusal of the presiding Justice.

Legal Issues Presented

Whether the Supreme Court properly granted summary judgment to the plaintiff on the mortgage foreclosure complaint against Carolyn Schenk.
Whether the Supreme Court properly denied Carolyn Schenk's motion for recusal of the Justice presiding over the foreclosure action.

Arguments of the Parties

Respondent's Arguments

The plaintiff established its entitlement to summary judgment by submitting the mortgage, unpaid note, and evidence of default.
The plaintiff was not obligated to accept tender of less than full repayment as demanded by the defendant.

Appellant's Arguments

Carolyn Schenk contended that the plaintiff should accept a tender of less than full repayment.
Schenk sought recusal of the presiding Justice, alleging bias or prejudice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 877 N.Y.S.2d 200	Establishing entitlement to summary judgment in foreclosure by producing mortgage, note, and evidence of default.	Used to confirm plaintiff met the initial burden for summary judgment.
Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 939 N.Y.S.2d 73	Supporting the plaintiff's burden and the defendant's failure to raise a triable issue of fact.	Supported the court's finding that Schenk failed to raise a bona fide defense.
Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681	Same as above regarding summary judgment and foreclosure defenses.	Reinforced plaintiff’s entitlement to summary judgment and defendant’s lack of defense.
Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 664 N.Y.S.2d 345	Evidence required to establish default in mortgage foreclosure.	Confirmed sufficiency of plaintiff’s proof of default.
EMC Mtg. Corp. v. Stewart, 2 A.D.3d 772, 769 N.Y.S.2d 408	Plaintiff not obligated to accept tender less than full repayment.	Supported rejection of defendant’s tender argument.
United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 724 N.Y.S.2d 134	Same as above regarding tender in foreclosure context.	Affirmed plaintiff’s right to reject partial tender.
First Fed. Sav. Bank v. Midura, 264 A.D.2d 407, 694 N.Y.S.2d 121	Same principle on tender and foreclosure proceedings.	Supported court’s ruling on tender issue.
Galanti v. Kraus, 98 A.D.3d 559, 949 N.Y.S.2d 638	Discretion of court in recusal decisions absent legal disqualification under Judiciary Law § 14.	Supported denial of recusal motion for lack of proof of bias.
Matter of O'Donnell v. Goldenberg, 68 A.D.3d 1000, 890 N.Y.S.2d 331	Same as above regarding recusal standards.	Reinforced court’s discretionary authority in recusal decisions.
People v. Moreno, 70 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200	Judiciary discretion and standards for recusal.	Supported the court’s exercise of discretion in denying recusal.
Burke v. Carrion, 101 A.D.3d 920, 957 N.Y.S.2d 243	Requirement of proof of bias or prejudice for recusal.	Used to conclude no basis for recusal was shown.
Hayden v. Gordon, 91 A.D.3d 819, 937 N.Y.S.2d 299	Same as above on recusal and judicial discretion.	Supported affirmance of denial of recusal motion.

Court's Reasoning and Analysis

The court first analyzed the plaintiff's motion for summary judgment in the mortgage foreclosure action. It noted that the plaintiff met its initial burden by submitting the mortgage, unpaid note, and evidence of default, thereby establishing entitlement to judgment as a matter of law. The defendant failed to raise any triable issue of fact or bona fide defense to foreclosure. The court rejected the defendant's argument that the plaintiff was required to accept a tender of less than full repayment, citing established precedents that the plaintiff is not obligated to do so.

Regarding the recusal motion, the court recognized that, absent a legal disqualification under Judiciary Law § 14, the decision to recuse is within the court's discretion. The defendant did not provide any evidence of bias or prejudice by the Justice presiding over the case. Consequently, the court found that the Supreme Court properly exercised its discretion in denying the recusal motion.

Finally, the court addressed the defendant’s remaining contentions, finding them either based on matters outside the record, improperly raised for the first time on appeal, or without merit.

Holding and Implications

The court affirmed both the order granting summary judgment to the plaintiff and striking the defendant's answer, and the order denying the defendant's motion for recusal.

The direct effect of this decision is to uphold the foreclosure judgment against Carolyn Schenk and to confirm the presiding Justice's authority to continue overseeing the case. The opinion does not establish new legal precedent beyond applying existing principles to the facts of this case.

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WASHINGTON MUTUAL BANK, respondent, v. Carolyn SCHENK, appellant, et al., defendants.

Carolyn Mary Schenk, named herein as Carolyn Schenk, Staten Island, N.Y., appellant pro se. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Carolyn Schenk appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated October 27, 2009, as, in effect, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her and to strike her answer, and (2) from an order of the same court, also dated October 27, 2009, which denied her motion, inter alia, for recusal.

ORDERED that the first order dated October 27, 2009, is affirmed insofar as appealed from; and it is further,

ORDERED that the second order dated October 27, 2009, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

“In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default” (Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 856, 877 N.Y.S.2d 200 [internal quotation marks omitted]; see Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 939 N.Y.S.2d 73; Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681). Here, the plaintiff bank sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting proof of the existence of the note and the mortgage, and the defendants' default in payment ( see Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 939 N.Y.S.2d 73; Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d at 856, 877 N.Y.S.2d 200; Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 664 N.Y.S.2d 345). In response, the defendant Carolyn Schenk failed to raise a triable issue of fact relating to any bona fide defense to foreclosure ( see Washington Mut. Bank v. Valencia, 92 A.D.3d at 774, 939 N.Y.S.2d 73; Wells Fargo Bank v. Das Karla, 71 A.D.3d at 1006, 896 N.Y.S.2d 681; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d at 856, 877 N.Y.S.2d 200). Contrary to Schenk's contention, here, the plaintiff was not obligated to accept tender of less than full repayment as demanded ( see EMC Mtg. Corp. v. Stewart, 2 A.D.3d 772, 773, 769 N.Y.S.2d 408; United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 765–766, 724 N.Y.S.2d 134; First Fed. Sav. Bank v. Midura, 264 A.D.2d 407, 407–408, 694 N.Y.S.2d 121). Accordingly, the Supreme Court properly, in effect, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Schenk.

“ ‘Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of the need for recusal, and its decision is a matter of discretion and personal conscience’ ” (Galanti v. Kraus, 98 A.D.3d 559, 949 N.Y.S.2d 638, quoting Matter of O'Donnell v. Goldenberg, 68 A.D.3d 1000, 1000, 890 N.Y.S.2d 331; see People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200). Here, the Supreme Court providently exercised its discretion in denying that branch of Schenk's motion which was for recusal, since she did not establish that there was a basis for recusal pursuant to Judiciary Law § 14, and failed to set forth any proof of bias or prejudice on the part of the Supreme Court Justice ( see Burke v. Carrion, 101 A.D.3d 920, 921, 957 N.Y.S.2d 243; Galanti v. Kraus, 98 A.D.3d at 559, 949 N.Y.S.2d 638; Hayden v. Gordon, 91 A.D.3d 819, 937 N.Y.S.2d 299).

Schenk's remaining contentions are either based on matter dehors the record, improperly raised for the first time on appeal, or without merit. ANGIOLILLO, DICKERSON, AUSTIN and HINDS–RADIX, JJ., concur.

Wash. Mut. Bank v. Schenk