Opinion
Index No. 850107/2017 MOTION SEQ. No. 001
04-12-2024
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-5, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES SERIES 2006-5, Plaintiff, v. ROSE A MARINO, AMELIO P MARINO, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, UNITED STATES OF AMERICA-INTERNAL REVENUE SERVICE, HSBC MORTGAGE CORPORATION (USA), JOHN DOE Defendant.
Unpublished Opinion
PRESENT: HON. FRANCIS A. KAHN, III Justice.
DECISION + ORDER ON MOTION
FRANCIS A. KAHN III, JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 55, 56, 57, 58, 59, 60, 61,62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155 were read on this motion to/for JUDGMENT-SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
In this action Plaintiff seeks to foreclose on a consolidated, extended and modified mortgage encumbering residential real property located at 245 West 71st Street, New York, New York. The mortgage, dated August 4, 2006, was given by Defendant Rose A. Marino ("Marino") to non-party American Home Mortgage ("American") to secure a loan with an original principal amount of $2,400,000.00. The indebtedness is evidenced by a note executed the same date as the mortgage. Marino and American's servicer executed a loan modification agreement dated March 1, 2010. Therein, Marino acknowledged the outstanding indebtedness and promised to pay the new principal balance and abide by the terms of the note.
Plaintiff commenced this action alleging inter alia that Marino defaulted in repayment of the loan on or about January 1, 2013. Marino filed an answer and pled thirty-four affirmative defenses, including lack of standing and failure to comply with RPAPL § 1304, as well as asserting seven counterclaims. Now, Plaintiff moves for summary judgment against Marino, to strike her answer and affirmative defenses, a default judgment against the non-appearing Defendants, for an order of reference and to amend the caption. Marino opposes the motion.
In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default in repayment (see U.S. Bank, N.A. v. James. 180 A.D.3d 594 [1st Dept 2020]; Bank of NY v. Knowles, 151 A.D.3d 596 [1st Dept 2017]; Fortress Credit Corp, v. Hudson Yards, LLC, 78 A.D.3d 577 [1st Dept 2010]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v. Litkowski, 172 A.D.3d 780 [1st Dept 2019]). As to the Mortgagor's default, it "is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v. McGann, 183 A.D.3d 700, 702 [2d Dept 2020]).
Based on the affirmative defenses pled, Plaintiff was required to demonstrate, prima facie, its standing (see eg Wells Fargo Bank, N.A. v. Tricario, 180 A.D.3d 848 [2nd Dept 2020]), its strict compliance with RPAPL §§ 1303, 1304 and 1306 (see U.S. Bank, NA v. Nathan, 173 A.D.3d 1112 [2d Dept 2019]; HSBC Bank USA, N.A. v. Bermudez, 175 A.D.3d 667, 669 [2d Dept 2019]) as well as its substantial compliance with the requisites under paragraph 22 of the mortgage (see e.g. Wells Fargo Bank, N.A. v. McKenzie, 186 A.D.3d 1582, 1584 [2d Dept 2020]). In support of a motion for summary judgment on a cause of action for foreclosure, a plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see e.g. U.S. Bank N.A. v. Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518[a] are fulfilled and the records evince the facts for which they are relied upon (see e.g. Citigroup v. Kopelowitz, 147 A.D.3d 1014, 1015 [2d Dept 2017]).
Plaintiffs motion was supported by an affidavit from Kevin Hannigan ("Flannigan"), an authorized representative of PHH Mortgage Corporation ("PHH"), successor to Ocwen Loan Servicing, LLC ("Ocwen"), the servicer and attorney-in-fact for Plaintiff. As the action was not commenced by PHH as servicer for Plaintiff, nor is it presently being prosecuted as same (cf. CW Capital Asset Mgt. v. Charney-FPG 114 41st St., LLC, 84 A.D.3d 506, 507 [1st Dept 2011], Plaintiff was required to demonstrated PHH's authority to act on its behalf for Flannigan's affidavit to be valid (see e.g. 21st Mtge. Corp. v. Adames, 153 A.D.3d 474, 476-477 [2d Dept 2017]). This was established through the proffer of a limited power of attorney, dated April 5, 2022, in which Plaintiffs Trustee nominated PHH as its "Sub-Servicer" which expressly included the authority to prosecute a foreclosure action (see U.S. Bank N.A. v. Tesoriero, 204 A.D.3d 1066 [2d Dept 2022]; Deutsche Bank Natl. Trust Co. v. Silverman, 178 A.D.3d 898 [2d Dept 2019]; US Bank N.A. v. Louis, 148 A.D.3d 758 [2d Dept 2017]).
As to the substance of the affidavit, Flannigan claims that his submission was based upon a review of PHH's records and knowledge of its record keeping practices. Flannigan's affidavit laid a proper foundation for the admission of the records of PHH into evidence under CPLR §4518. Contrary to Marino's assertion, Flannigan stated he was familiar with the record keeping practices of PHH and sufficiently showed that the records PHH relied upon "reflect[ed] a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business", "that the record [was] made pursuant to established procedures for the routine, habitual, systematic making of such a record" and "that the record [was] made at or about the time of the event being recorded" (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 204 [2d Dept 2019]; see also Bank of Am v. Brannon, 156 A.D.3d 1 [1st Dept 2017]). The records of other entities were also admissible since Flannigan sufficiently established that those records were received from the makers and incorporated into the records SPS kept and that it routinely relied upon such documents in its business (see e.g., U.S. Bank N.A. v. Kropp-Somoza, 191 A.D.3d 918 [2d Dept 2021 ]). Further, annexed to the motion were all the records referenced by Flannigan (cf. Deutsche Bank Natl. Trust Co. v. Kirschenbaum, 187 A.D.3d 569 [1st Dept 2020]).
Flannigan's review of the attached records demonstrated the material facts underlying the claim for foreclosure, to wit the mortgage, note, and evidence of mortgagor's default in repayment under the note (see e.g. ING Real Estate Fin. (USA) LLC v. Park Ave. Hotel Acquisition, LLC, 89 A.D.3d 506 [1st Dept 2011]; see also Bank of NY v. Knowles, supra; Fortress Credit Corp, v. Hudson Yards, LLC, supra). In addition, the loan modification agreement evidenced the indebtedness (see Redrock Kings, LLC v. Kings Hotel, Inc., 109 A.D.3d 602 [2d Dept 2013]; EMC Mortg. Corp, v. Stewart, 2 A.D.3d 772 [2d Dept 2003]) and Marino's default in repayment was established through multiple admissions contained in letters addressed to the servicer that she proffered in opposition to the motion.
As to standing in a foreclosure action, it is established in one of three ways: [1] direct privity between mortgagor and mortgagee, [2] physical possession of the note prior to commencement of the action that contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff either on its face or by allonge, and [3] assignment of the note to Plaintiff prior to commencement of the action (see eg Wells Fargo Bank, N.A. v. Tricario, 180 A.D.3d 848 [2d Dept 2020]; Wells Fargo Bank, NA v. Ostiguy, 127 A.D.3d 1375 [3d Dept 2015]). "The attachment of a properly endorsed note to the complaint may be sufficient to establish, prima facie, that the plaintiff is the holder I of the note at the time of commencement" (Deutsche Bank Natl. Trust Co. v. Webster, 142 A.D.3d 636, 638 [2d Dept 2016]; cf. JPMorgan Chase Bank, N.A. v. Grennan, supra). In this case, Plaintiff annexed a copy of the note to the complaint endorsed in blank by the original lender, American, on its face. This is sufficient to demonstrate that Plaintiff was the holder of the note when the action was commenced (see Ocwen Loan Servicing LLC v. Siame, 185 A.D.3d 408 [1st Dept 2020]; Bank of NY v. Knowles, supra at 597).
In opposition, Defendants' claim that Plaintiff failed to demonstrate all the elements of a cause of action for foreclosure is without merit. The affidavit and proffered business documents were all in admissible form. The argument concerning physical delivery of the note is meritless. When a copy of the note, endorsed in blank, is attached to the complaint "[t]here is simply no requirement that an entity. . . must establish how it came into possession of that instrument" (see JPMorgan Chase Bank, NA v. Weinberger, 142 A.D.3d 643, 645 [2d Dept 2016]; see also Bank of Am., N.A. v. Pennicooke, 186 A.D.3d 545 [2d Dept 2020]).
Marino also posits that an issue of fact precluding summary judgment exists as to whether Plaintiff frustrated "Defendants from fulfilling the payment obligations under the note and mortgage". Generally, a material breach by one party to a contract may excuse another party's performance (see Grace v. Nappa, 46 N.Y.2d 560, 567 [1979]). Moreover, "[a] promisee who prevents the promisor from being able to perform the promise can not maintain suit for nonperformance; he discharges the promisor from duty" (Canterbury Realty & Equip. Corp. v. Poughkeepsie Sav. Bank, 135 A.D.2d 102, 107 [3d Dept 1988]). Here, Marino's affidavit and the proffered correspondences only demonstrate that Marino believed the amount of the installment payments demanded were incorrect without demonstrating that supposition was a fact (see generally Flintkote Co. Bert Bar Holdings, 114 A.D.2d 400 [2d Dept 1985]). Marino does not proffer the alleged erroneous account statements referenced nor explain how, other than in a conclusory fashion, that the amount demanded therein was flawed. A litigant cannot simply submit an array of documents without explaining how these documents support its argument (see Penava Meeh. Corp, v. Afgo Meeh. Servs., Inc., 71 A.D.3d 493 [1st Dept 2010]). Similarly, Marino's claims of timely payment of installments are unavailing as they are uncorroborated by financial records of any kind (see 255 Co. v. World Wide Trend Setters, Inc., 148 A.D.3d 336 [1st Dept 1989]; Peerless Constr. Co. v. Mancini, 95 A.D.3d 666 [3d Dept 1983]). To the extent it is asserted that Plaintiff interfered with Marino's tender of arrears before acceleration of the indebtedness, there is no evidence of Marino's attempt to pay all arrears, which encompasses accrued interest and late charges (see EMC Mortg. Corp. v. Stewart, 2 A.D.3d 772, 773 [2d Dept 2003]; United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 766 [3d Dept 2001]; First Fed. Sav. Bank v. Midura, supra).
The opposition based on an alleged breach of the implied covenant of good faith and fair dealing fails as that affirmative defense is improperly duplicative of the breach of contract claims and defenses (see e.g., City of New York v. 611 West 152nd St., Inc., 273 A.D.2d 125 [1st Dept 2000]).
Assuming, that the defense of unclean hands is applicable to a mortgage foreclosure action (see Phh Mtge. Corp, v. Davis, 111 A.D.3d 1110, 1112 [3d Dept 2013]), that doctrine "is used only to bar the grant of equitable relief to a party who is 'guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct'" (Wells Fargo Bank v. Hodge, 92 A.D.3d 775 [2d Dept 2012]). The purported failure of Plaintiff, as well as its servicers and assignees, to respond to Defendant's inquires, even if true, does not constitute conduct to support such a defense (see Wells Fargo Bank, N.A. v. Dara, 180 A.D.3d 844 [2d Dept 2020]). Nor does Plaintiffs decision to not offer a loan modification or its decision to proceed to foreclosure (see Bank of Smithtown v. 264 W. 124 LLC, 105 A.D.3d 468 [1st Dept 2013]).
Marino's defense based upon General Business Law §349 is unavailing as it is specific to the subject mortgage and is not based on "consumer-oriented" conduct (see Wells Fargo Bank, N.A. v. Farfan, 203 A.D.3d 1107, 1110 [2d Dept 2022]). Defendant was required, but failed, to proffer evidence that Plaintiffs acts or practices have a broader impact on consumers at large since private contract disputes, unique to the parties, do not fall within the ambit of the statute (see New York Univ v. Continental Ins. Co., 87 N.Y.2d 308, 320 [1995]; Scarola v. Verizon Communications, Inc., 146 A.D.3d 692, 693 [1st Dept 2017]). "[C]onclusory allegations about defendant's practices with other clients are insufficient to save the claim" (Golub v. Tanenbaum-Harber Co. Inc., 88 A.D.3d 622, 623 [1st Dept 2011]). Indeed, Plaintiff was not the original lender and Defendant failed to explain what specific actions by Plaintiff are the foundation of this claim.
A claim of fraud must allege "the circumstances constituting the wrong.. .in detail" (CPLR §3016 [b]). "To state a cause of action for fraudulent inducement, it is sufficient that the claim alleges a material representation, known to be false, made with the intention of inducing reliance, upon which the victim actually relies, consequentially sustaining a detriment" (Merrill Lynch v. Wise Metals Group, LLC., 19 A.D.3d 273, 275 [1st Dept 2005]). A "cause of action for fraud arising out of a contractual relationship may be maintained only where the plaintiff alleges a breach of duty separate from, or in addition to, a breach of the contract" (Levine v. American Intern. Group, 16 A.D.3d 250 [1st Dept 2005]). Therefore, "the alleged misrepresentation should be one of then-present fact, which would be extraneous to the contract and involve a duty separate from or in addition to that imposed by the contract, and not merely a misrepresented intent to perform" (Hawthorne Group LLC v. RRE Ventures, 7 A.D.3d 320, 323-24 [1st Dept 2004]). In the present case. Marino failed to establish what duty Plaintiff owed her outside the loan documents. Any claim by Marino that she reasonably relied on representations that were plainly at odds with the terms contained in the loan documents is unavailing (see Aurora Loan Servs., LLC v. Enaw, 126A.D.3d 830 [2d Dept 2015]).
Defendant's reliance on Plaintiffs alleged failure to reply to "qualified written requests" as constituting violations of the Real Estate Settlement Procedures Act [12 USC §2601, et seq.} fails. "A RESPA violation does not adversely affect the validity or enforceability of a federally related mortgage loan (see 12 USC § 2615) and thus, a disclosure violation of RESPA does not constitute a valid defense to mortgage foreclosure" (Deutsche Bank Nat'l Trust Co. v. Campbell, 26 Misc.3d 1206[A][Sup Ct Kings Cty 2009]).
Concerning the defense of estoppel, this equitable doctrine exists "to prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another" (American Bartenders School v. 105 Madison Co., 59 N.Y.2d 716, 718 [1983]; see also Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184 [1982]). "To establish an estoppel, a party must prove that it relied upon another's actions, its reliance was justifiable, and that, in consequence of such reliance, it prejudicially changed its position" (Flushing Unique Homes, LLC v. Brooklyn Fed. Sav. Bank, 100 A.D.3d 956, 958 [2d Dept 2012]). Absence of any of these essential elements renders an estoppel defense deficient (see Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt., L.P., 7 N.Y.3d 96, 106 [2006]). In this case, reliance on representations of Plaintiff in the second loan modification process is not justifiable since Marino does not claim Plaintiff assented to modify the loan nor was Plaintiff under an obligation to grant a modification (see King Penguin Opportunity Fund III, LLC v. Spectrum Group Mgt. LLC, 187 A.D.3d 688, 689 [1st Dept 2020]). Similarly, there is no claim that Plaintiff expressly consented to forego foreclosure while this second modification process proceeded (cf. Marine Midland Bank-Western v. Center of Williamsville, Inc., 48 A.D.2d 764 [4th Dept 1975]).
Parenthetically, the Court notes that the detrimental reliance claimed by Marino in support of these affirmative defenses is almost entirely founded in increased interest and other charges caused by the delays. Ordinarily, disputes as to the amount owed are not a defense to a motion for summary judgment on a foreclosure cause of action (see eg Emigrant Bank v. Cohen, 205 A.D.3d 103, 109 [2d Dept 2022]; Heywood Condominium v. Rozencraft, 148 A.D.3d 38 [1st Dept 2017]; see also NYCTL 2009-A Trust v. Tsafatinos, 101 A.D.3d 1092 [2nd Dept 2012]). This is because the amount owed does not affect the validity of a mortgage nor whether a mortgagor defaulted (see Johnson v. Gaughan, 128 A.D.2d 756, 757 [2d Dept 1987]). Nevertheless, in a foreclosure action "'the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by particular facts in each case,' including wrongful conduct by either party" (U.S. Bank N.A. v. Beymer, 190 A.D.3d 445 [1st Dept 2021], citing South Shore Fed. Sav. & Loan Assn, v. Shore Club Holding Corp., 54 A.D.2d 978, [2d Dept 1976]) as well as "unexplained delay" in prosecution for the foreclosure claim (see Deutsche Bank Natl Trust Co v. Cumbe, 217 A.D.3d 832 [2d Dept 2023]; see also Deutsche Bank Natl Trust Co v. Armstrong, 218 A.D.3d 738 [2d Dept 2023]).
The assertion the motion must be denied because no discovery has been conducted concerning the above defenses is unavailing as Defendants offered nothing to demonstrate Plaintiff is in exclusive possession of facts which would establish a viable defense to summary judgment (see Island Fed. Credit Union v. I & D Hacking Corp., 194 A.D.3d 482 [1st Dept 2021]).
Regarding service of any required statutory and contractual pre-foreclosure notices, proof of service of same is only part of a plaintiff s prima facie case for summary judgment where non-conclusory affirmative defenses raising same are pled by a defendant in its answer (see One W. Bank, FSB v. Rosenberg, 189 A.D.3d 1600, 1602). Here, Marino only raised non-compliance with RPAPL § 1304 and "express or implied terms of the note and mortgage".
Proof of compliance with RPAPL § 1304 requires Plaintiff to proffer "sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" (Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 106 [2d Dept 2011]). "'[P]roof of the requisite mailing . . . can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure'" (Deutsche Bank Natl. Trust Co. v. Dennis, 181 A.D.3d at 866, quoting Citibank, N.A. v. Conti-Scheurer, 172 A.D.3d 17, 21 [2d Dept 2019]). In other words, either an affidavit from the person who performed the mailing of the notice or proof from a person with "personal knowledge of the practices utilized by the [sender] at the time of the alleged mailing" is sufficient (Preferred Mut. Ins. Co. v. . Donnelly, 22 N.Y.3d 1169, 1170 [2014]; see also Bossuk v. Steinberg, 58 N.Y.2d 916, 919 [1983]).
To demonstrate standard mailing procedure, the Court of Appeals has "has long recognized a party can establish that a notice or other document was sent through evidence of actual mailing or-as relevant here-by proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature" (Cit Bank N.A. v. Schiffman, 36 N.Y.3d 550, 556 [2d Dept 2020][intemal citations omitted]). A satisfactory office practice giving rise to the presumption "must be geared so as to ensure the likelihood that [the] notice ... is always properly addressed and mailed" (Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 830 [1978]) and can be demonstrated via an affiant who explains "among other things, how the notices and envelopes were generated, posted and sealed, as well as how the mail was transmitted to the postal service" (Cit Bank N.A. v. Schiffman, supra). Fulfillment of this requirement can raise a presumption that the required notice was sent and received by the projected addressee (Cit Bank N.A. v. Schiffman, supra).
In support of these requirements, Plaintiff proffered an affirmation of service from Anthony Cellucci, Esq ("Cellucci"), an attorney with Plaintiffs purported former counsel, who averred he' personally mailed the notices. The affirmation is dated June 20, 2023, and recounts service allegedly ] made on June 9, 2016. "A properly executed affidavit of service raises a presumption that a proper' mailing occurred" (Engel v. Lichterman, 62 N.Y.2d 943, 944 [1984]). In this context, direct knowledge affidavits, despite the rarity of same, are competent to prove service of the statutory notice (see Emigrant Bank v. Cohen, 205 A.D.3d 103, 107-108 [2d Dept 2022]). Moreover, an affidavit not executed concurrently with the mailings does not, in and of itself, render such proof infirm (id. at 107 [Affidavit executed 8'/2 months after service]). Further, "RPAPL 1304 does not preclude an attorney acting on behalf of a lender from sending RPAPL 1304 notices" (Ocwen Loan Servicing LLC v. Siame, supra at 409; United Nations Federal Credit Union v. Diarra, 194 A.D.3d 506 [1st Dept 2021]). Nevertheless, the Court is not obligated to accept proof of service completely at face value and may evaluate the trustworthiness of the averments therein and the surrounding circumstances. "Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined" (Cit Bank N.A. v. Schiffman, supra at 557).
In this case, the preparation of the Cellucci's affirmation seven years after the fact, and eight days before the motion was filed, does not suggest the record was made "while the memory of the event was still fresh enough to be fairly reliable" (Toll v. State, 32 A.D.2d 47, 50 [3d Dept 1969]). Absent any additional information which expounds on and corroborates Cellucci's extraordinary recollection of an ostensibly mundane event, the timeline here supports a conclusion that the document was prepared exclusively for this motion which, under the particular circumstances of this case, renders it deficient (see generally People v. Foster, 27 N.Y.2d 47, 5211970]). Also absent from Cellucci's affirmation is any alternative proof of mailing such as domestic return receipts with attendant signatures or a "copy of an envelope addressed to the defendant bearing a certified mail twenty-digit barcode" (Nationstar Mtge., LLC v. LaPorte, 162 A.D.3d 784, 786 [2d Dept 2018]).
With respect to the contractual pre-foreclosure notice under paragraph 22 of the mortgage, Plaintiff submitted an affidavit from Lisa Cochran ("Cochran"), an SVP - IT Management by Covius Document Services, LLC, f/k/a Walz Group, LLC ("Covius"), an alleged agent of Ocwen. Cochran's affidavit is deficient as the procedure used by Covius was only described in conclusory detail (see" Freedom Mtge Corp v. Granger, 188 A.D.3d 11631165 [2d Dept 2020]; M & T Bank v. Biordi, 176 A.D.3d 1194, 1196 [2d Dept 2019]; cf. Citimortgage, Inc. v. Ustick, 188 A.D.3d 793, 794 [2d Dept 2020]).
Accordingly, Plaintiff failed to establish prima facie that it sent either the notices required pursuant to RPAPL §1304 or under paragraph 22 of the mortgage.
With respect to the affirmative defenses counterclaim not addressed in the moving papers, to the extent that specific legal arguments were not proffered, those defenses were abandoned (see U.S. Bank N.A. v. Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v. Bellafiore, 94 A.D.3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v. Perez, 41 A.D.3d 590 [2d Dept 2007]).
The branch of Plaintiffs motion for a default judgment against the non-appearing parties is granted without opposition (see CPLR §3215; SRMOFII2012-1 Trust v. Telia, 139 A.D.3d 599, 600 [1st Dept 2016]).
The branch of Plaintiffs motion to amend the caption is granted without opposition (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v. Laszio, 169 A.D.3d 885, 887 [2d Dept 2019]).
Accordingly, it is
ORDERED that the branches of Plaintiff s motion for summary judgment on its causes of action for foreclosure and the appointment of a referee are denied, and it is
ORDERED that all the affirmative defenses and counterclaims in Defendants' answer, except the eighth affirmative defense, are stricken, and it is
ORDERED that this action is hereby dismissed, without prejudice, against Amelio P. Marino, who is not a necessary party to this action, and that the caption be amended to reflect this dismissal; and it is further
ORDERED that the request that John Doe (Refused Name) be substituted for "John Doe #1" as a party defendant in the caption of this action is denied as the New York County Clerk will not accept a judgment with any "Doe" defendant in the caption; and it is further
ORDERED that the names of "John Doe #1" through "John Doe #12" be stricken from the action, said parties not being necessary party defendants herein; and it is further
ORDERED that the caption shall be amended to read as follows:
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-5,
MORTGAGE-BACKED PASS-THROUGH '[ CERTIFICATES SERIES 2006-5, Plaintiff,
-against-
ROSE A. MARINO; NEW YORK CITY ENVIRONMENT AL CONTROL BOARD; UNITED STATES OF AMERICA-INTERNAL REVENUE SERVICE; HSBC MORTGAGE CORPORATION (USA), Defendants.
and it is
ORDERED that this matter is set down for a status conference on May 29,2024 @ 11:40 am via Microsoft Teams.