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Decided on October 5, 2011
Supreme Court, Kings County
Shirley Jackson, Plaintiff,

against

Bank of New York Mellon, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS ("MERS"), THE CIT
GROUP/CONSUMER FINANCE, INC., AMERIQUEST MORTGAGE
COMPANY, ARGENT MORTGAGE COMPANY, CHAMPION
MORTGAGE, BANK OF NEW YORK MELLON F/K/A THE BANK
OF NEW YORK AS TRUSTEE ON BEHALF OF CIT MORTGAGE
LOAN TRUST 2007-1, ACCREDITED HOME LENDERS, INC.,
FORECLOSURE MANAGEMENT COMPANY, CIT MORTGAGE
LOAN TRUST 2007-1, Defendants.









31081/10
Plaintiff Shirley Jackson is pro se 3506 Clarendon Road Brooklyn, New York 11203
(917) 674-5512
Defendants Ameriquest Mortgage Company and
Argent Mortgage Company are represented by
Kenneth Flickinger, Esq.
Knuckles, Komosinski & Elliott, LLP
565 Taxter Road, Suite 590
Elmsford, New York 10523

(914) 345-3020
Attorney for Defendants:
CIT Group/Consumer Finance, Inc.,
Bank of New York Mellon f/k/a The Bank of New York as Trustee on Behalf of CIT Mortgage

Loan Trust, 2007-1,
MERSCORP, Inc., and Mortgage Electronic Registration Systems, Inc. is
Michael A. Weiss, Esq.
Day Pitney LLP
7 Times Square
New York, New York 10036

(212) 297-5800
Francois A. Rivera, J.

By notice of motion filed on May 12, 2011, defendants Ameriquest Mortgage Company and

Argent Mortgage Company (hereafter "Ameriquest and Argent") jointly move under motion sequence number one, for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(1), (5) and (7). Plaintiff opposes Ameriquest and Argent's motion.
By notice of motion filed on May 28, 2011, defendants The CIT Group/Consumer Finance, Inc. (hereafter "CIT"), Bank of New York Mellon F/K/A The Bank of New York as Trustee on behalf of CIT Mortgage Loan Trust 2007-1, Bank of New York Mellon (hereafter referred to collectively as "Bank of New York"), Mortgage Electronic Registration Systems (hereafter "MERS"), jointly move under motion sequence number two, for an order, pursuant to CPLR 3212, granting summary judgment on liability in their favor and dismissing plaintiff's complaint, and an order awarding costs and attorney's fees. Plaintiff opposes Bank of New York's motion.


BACKGROUND
On December 22, 2010, plaintiff filed a summons and verified complaint with the Kings County Clerks office. By verified answer, dated April 21, 2011, CIT, Bank of New York and MERS joined issue. Ameriquest and Argent have not answered the plaintiff's complaint. To this date a note of issue has not been filed.
Plaintiff's complaint contains twenty-nine numbered paragraphs stating various facts purportedly in support of one cause of action. The cause of action is stated as follows:
"Acts of deception & fraudulent practices calculated to cloud title to
plaintiff's bona fide free and clear private property, common law unlawful trespassory
torts subjecting plaintiff to the unending distress of hostile occupation on her private
property, intentional fraudulent misrepresentation, unconscionable and continuing
practice to extort non-existent mortgage payments causing perplexing anxiety and fear of
loss/confiscation of plaintiffs' bona fide private property."
The following allegations, among others, are stated in the complaint. In 2005 and 2007 the plaintiff filed several satisfactions of mortgage pertaining to the property at 3506 Clarendon Road, Brooklyn, NY (hereafter the "subject property"); that Bank of New York, CIT, MERS, [*2]Ameriquest and Argent are authorized to conduct business in the State of New York; that CIT and MERS executed a "dubious assignment of mortgage" utilizing a "pass-through scam/sham endorsement" on April 4, 2008; that the mortgage was then subject to a "dubious conveyance" to Bank of New York on November 20, 2008; and that Bank of New York, CIT, MERS, Ameriquest and Argent all received and gave value in the "acts of fraud" committed on April 4, 2008 and November 20, 2008.

MOTION PAPERS
Ameriquest and Argent's motion papers consist of a notice of motion, an attorney's affirmation and six exhibits labeled "A" through "F." Exhibit "A" is a copy of the summons and verified complaint. Exhibit "B" is a copy of the mortgage provided to plaintiff by Argent. Exhibit "C" is a copy of the assignment of the Argent mortgage to Ameriquest. Exhibit "D" is a copy of the assignment of the Ameriquest mortgage to non-party Wells Fargo. Exhibit "E" is a copy of the satisfaction of the Argent mortgage dated March 29, 2006, recorded with the New York City register on April 13, 2006. Exhibit "F" is a copy of an ACRIS report purportedly evidencing the satisfaction of the Argent mortgage.
Plaintiff has opposed Ameriquest and Argent's motion with plaintiff's affidavit and an annexed copy of Ameriquest and Argent's instant motion. Plaintiff labeled the opposition papers as follows. "Plaintiff's notice of affidavit of conditional acceptance of the document titled Notice of Motion to Dismiss' dated April 27, 2011, by Kenneth Flickinger, ESQ., whose oath of office is accepted unconditionally."
Bank of New York's motion papers consist of an attorney's affirmation; fifteen exhibits labeled "1" through "9 "; the affirmation of Patricia Saenz, an employee of non-party Vericrest Financial, Inc., a purported mortgage servicing company authorized to service and handle mortgage transactions on behalf of Bank of New York; exhibits to the Saenz affirmation, labeled "A" through "F"; and a separate memorandum of law. Exhibit 1 is a copy of the summons and verified complaint. Exhibit 2 is a copy of Bank of New York, CIT and MERS' answer dated May 21, 2008. Exhibit 3 is a copy of the verified complaint of CIT in the underlying action against plaintiff, bearing index number 16066/2008 (hereafter the "underlying matter"). Exhibit 4 is the answer of plaintiff, as a defendant in the underlying matter, dated June 25, 2009. Exhibit 5 is copy of CIT's amended verified reply to counterclaims in the underlying action. Exhibit 6 is a copy of an order of this court on an earlier foreclosure action between the parties about the same subject property under index number 16066/08 (hereinafter "the earlier action"). Exhibit 7 is a copy of an order of this court dated September 24, 2010, on the earlier action which granted Bank of New York's motion for summary judgment and appointed a referee. Exhibit 8 is a copy of the plaintiff's order to show cause, dated October 15, 2010, made on the earlier action. Exhibit 9 is a copy of the order of this court, dated November 19, 2010, which denying plaintiff's aforementioned order to show cause dated October 15, 2010.
Exhibit A consists of copies in interest only notes pertaining to the subject premises. Exhibit B consists of a copy of a "New York Balloon Note" pertaining to the subject premises and purportedly bearing the signature of the plaintiff. Exhibit C consists of a copy of a mortgage between plaintiff and non-party Accredited Home Lenders, Inc. in the amount of $436,000.00, [*3]purportedly bearing the signature of plaintiff. Exhibit D consists of a copy of a mortgage between plaintiff and non-party Accredited Home Lenders, Inc. in the amount of $81,750.00, purportedly bearing the signature of plaintiff. Exhibit E and F consists of copies of various recorded assignments of mortgages on the subject property.
Plaintiff has opposed Bank of New York's motion with an affidavit titled "Plaintiff's notice of opposition to defendants' summary judgment motion triable issues of fact exist and are material." Plaintiff has also annexed parts of a copy of Bank of New York's instant motion, namely, the affirmation of Bank of New York's counsel, the affidavit of Patricia Saenz and a copy the orders annexed as exhibit six and nine to Bank of New York's instant.
Bank of New York has replied to plaintiff's opposition with a memorandum of law.

LAW AND APPLICATION
CPLR 2214(a) provides in pertinent part as follows.
Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.
CPLR 3013 provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Under this section, "[a] complaint is insufficient if based solely on conclusory statements, unsupported by factual allegations" (Melito v. Interboro-Mutual Indem. Ins. Co., 73 AD2d 819, 820, 423 N.Y.S.2d 742 [1979]).
CPLR 3014 provides that "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs." It further provides that "[e]ach paragraph shall contain, as far as practicable, a single allegation." Liberal construction "cannot be used as a substitute for matters of substance . . . nor may conclusory statements of law be utilized to supply material facts by inference" (Didier v. Macfadden Publs., 299 NY 49, 53, 85 N.E.2d 612 [1949]).
CPLR 3016(b) provides, "Fraud or mistake. Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." "When a plaintiff brings a cause of action based upon fraud, "the circumstances constituting the wrong shall be stated in detail" (CPLR 3016 [b]). "The purpose of section 3016 (b)'s pleading requirement is to inform a defendant with respect to the incidents complained of," thus, "[w]e have cautioned that section 3016 (b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud" (Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 491, 890 NE2d 184, 860 NYS2d 422 [2008][internal quotation marks and citation omitted]). What is "[c]ritical to a fraud claim is that a complaint allege the basic facts to establish the elements of the cause of action," and although under CPLR 3016 (b) "the complaint must sufficiently detail the allegedly fraudulent conduct, that requirement should not be confused with unassailable proof of fraud" (id. at 492). "Necessarily, then, section 3016 (b) may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct" (id)" (Sargiss v. Magarelli, 12 NY3d 527, 530-531, [*4]909 N.E.2d 573, 575 [2009]).
CPLR 3211(a)(7) states, "Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: ... (7) the pleading fails to state a cause of action." "On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v. City of New York, 9 NY3d 825, 827, 874 N.E.2d 720, 722 [2009]; citing, Leon v. Martinez, 84 NY2d 83, 87-88, 638 N.E.2d 511, 513 [1994]).
The Appellate Division, Second Department, reasoned in Sokol v. Leader, 74 AD3d 1180, 904 N.Y.S.2d 153, [2d 2010], that:
On a motion made pursuant to CPLR 3211(a)(7) to dismiss a complaint, the burden never shifts to the non-moving party to rebut a defense asserted by the moving party. "CPLR 3211 allows
[a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal."... Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), "affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.'... Thus, a plaintiff "will not be penalized because he has not made an evidentiary showing in support of his complaint." (Id. at 1181. [internal citations omitted]).
The Court in Sokol further reasoned, that:
"[A] court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]). If the court considers evidentiary material, the criterion then becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one."... Yet, affidavits submitted by a defendant "will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action."... Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it." (Id. at 1181-1182. [internal citations omitted]).
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 NY2d 72, 790 N.E.2d 772 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 619 N.E.2d 400 [1993]). If a prima facie showing has been made, the burden shifts to opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d at 324).
Defendants Ameriquest and Argent have moved to dismiss plaintiff's complaint, pursuant to CPLR 3211(a)(1), (5) and (7). A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) is to assert a defense founded upon documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(5) is to assert that the cause of action may not be maintained because [*5]of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds. CPLR 3211(a)(1) and (a)(5) both require a cognizable claim before one may apply a defense based on documentary evidence or a claim that the action is barred. For the reasons set forth below the court will not address these two grounds for dismissal.
Bank of New York's motion seeks summary judgment on the issue of liability in their favor pursuant to CPLR 3212 as well as attorney's fees and cost.
In deciding both motions, the court must ascertain, first, whether there are factual allegations which give the defendant and the court notice of the transactions or occurrences intended to be proved, and, second, whether those factual allegations allege any cognizable cause of action.
Here, plaintiff's complaint contains numerous bare legal conclusions and fails to limit each paragraph to single factual allegations in accordance with CPLR 3014. Plaintiff repeatedly states that her peaceful possession and unclouded title to her private property remains in jeopardy and hostility. She then states that the jeopardy is caused by each defendants fraudulent act of executing void and dubious assignments. However, there are no facts explaining what acts constitute the fraud or what is improper about any of the assignments. At one point she states that her mortgage was subject to a "fraudulent conversion of [the assignment of her mortgage] into a derivative known as mortgage backed security".
These fanciful phrases are followed by other conclusory claims. Plaintiff's entire complaint does not allege any act or occurrence by any defendant which would amount to a fraud. The complaint fails to contain a cognizable claim in law or equity. The sworn allegations of fact contained in plaintiff's opposition papers to both motions does not remedy the deficiencies in the complaint (See, generally Pike v. New York Life Ins. Co., 72 AD3d 1043, 1049, 901 N.Y.S.2d 76 [2010]).
While, as discussed above, the court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, here, the court cannot strain to give meaning to a pleading which completely fails to state any coherent or comprehensible factual allegations (See CPLR 3013, 3014 and 3016).
The Bank of New York defendants have strained to read meaning into plaintiff's complaint in order to assert defenses and bars to maintenance of the action. However, since plaintiff has not satisfied the first requirement of pleading facts which give notice of the transactions or occurrences intended to be proved, there are no facts against which to apply the second requirement of whether the alleged facts state a cognizable cause of action (See CPLR 3013, 3014 and 3016).
Thus, inasmuch as plaintiff's complaint does not state any cognizable claim in law or in equity, it must be dismissed: pursuant to CPLR 3211 (a) (7) (See Heffez, 56 AD3d at 526; Simmons, 32 AD3d at 465).
Bank of New York's motion to dismiss the complaint pursuant to CPLR 3212 is granted. Plaintiff's failure to state a cause of action satisfies the movants' burden to make a prima facie showing of entitlement to summary judgment dismissing the complaint. The plaintiff may not [*6]raise an issue of fact when no cognizable claim is stated. In opposing the motion the plaintiff may attempt to remedy the deficiencies in the pleadings with other admissible evidence. However, the plaintiff has failed to do so.
The court, therefore, need not address Bank of New York's claim under CPLR 3211(a)(1) or (5).
However, Bank of New York's motion for an order granting costs and attorney's fees is denied because they stated no factual or legal basis for this relief as required by CPLR 2214(a).

CONCLUSION
Ameriquest and Argents' motion to dismiss plaintiff's complaint, pursuant to CPLR 3211 (a)
(7) is granted.
The Bank of New York's motion to dismiss plaintiff's complaint pursuant to CPLR 3212 is granted.
The Bank of New York's motion for costs and attorney's fees is denied
The foregoing constitutes the decision and order of the court.
Enter:________________________________
J.S.C.

J.S.C.


Enter Forthwith:________________________________

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