Opinion
11-18-2016
PENNYMAC, CORP., Plaintiff, v. Darren DiPRIMA, Margaret DiPrima, Mortgage Electronic Registration Systems, Inc., as Nominee for Wilmington Finance, Inc., and "JOHN Does" & "Jane Does" said last names being fictitious, parties intended being possible tenants or occupants of premises, and corporations and other entities or persons who claim, or may claim, a lien the premises, Defendants.
Rosicki, Rosicki & Assoc., Plainview, Attys. for Plaintiff. Westerman, Ball, Ederer, Uniondale, Attys. for Defendants DiPrima.
Rosicki, Rosicki & Assoc., Plainview, Attys. for Plaintiff.
Westerman, Ball, Ederer, Uniondale, Attys. for Defendants DiPrima.
THOMAS F. WHELAN, J. It is,
ORDERED that this motion (No. 001) by the plaintiff for an order granting it summary judgment against the DiPrima defendants, a default judgment against the corporate defendant and the deletion of the unknown defendants and an order appointing a referee to compute is considered under CPLR 3212, 3215, 1024, 1003 and RPAPL § 1321 and is granted; and it is further
ORDERED that the cross motion (# 002) by the DiPrima defendants for an order dismissing the plaintiff's complaint on the grounds that the plaintiff failed to comply with RPAPL § 1304 pre-action, 90 day notice requirements and the filing requirements imposed by RPAPL § 1306 and a denial of the plaintiff's motion due to proof failures and the existence of issues of fact with respect to the plaintiff's standing and the defendants' purported default in payment is considered under RPAPL §§ 1304 and 1306 and CPLR 3212 and CPLR 3215 and is denied.
In January of 2014, the plaintiff commenced this action to foreclose the lien of a June 2, 2007 mortgage given by the DiPrima defendants to Wilmington Finance, Inc., as security for a mortgage note likewise given in the principal amount of $365,032.00. Under the terms of a loan modification agreement executed by CitiMortgage, Inc., as Lender/Servicer, and the DiPrima defendants in May of 2010, the loan, which was then in default, was modified to reflect a new principal balance of $370,371.00, a non-adjustable interest rate and an extension of the maturity date of the loan to July 1, 2047. According to the complaint, the modified loan went into default on November 1, 2011 and all notices of default required to be sent to the DiPrima defendants and filed with the NYS Department of Financial Services were duly mailed and filed.
In response to the plaintiff's service of the summons and complaint, the DiPrima defendants appeared herein by service of an answer. Said answer contains some nine affirmative defenses and one counterclaim for counsel fees pursuant to RPL § 282. The Second, Third and Fourth affirmative defenses challenge the plaintiff's standing and/or the enforceability of the contractual remedy of foreclosure. A challenge to the plaintiff's compliance with the contractual default notice requirements is set forth in the Fifth affirmative defense. The remaining affirmative defenses challenge the legal sufficiency of the complaint, the failure to join a necessary party and the propriety of the joinder of defendant, Mortgage Electronic Registration Systems, Inc. ["MERS"], or assert unidentified defenses predicated upon documentary evidence. The MERS defendant, which was the only other defendant served with process, did not appear herein by answer.
By the instant motion (# 001), the plaintiff seeks summary judgment dismissing the affirmative defenses and counterclaim set forth in the answer of the DiPrima defendants and an award of summary judgment in favor of the plaintiff on its complaint. The plaintiff also seeks a default judgment against defendant MERS, an order deleting the unknown defendants and the appointment of a referee to compute amounts due under the subject note and mortgage. The motion is opposed by the DiPrima defendants in cross moving papers (# 002) in which they seek dismissal of the complaint on the unpleaded ground that the plaintiff failed to comply with the pre-action, 90 day notice requirements imposed by RPAPL § 1304 and the filing of such notices with the NYS Department of Financial Services as required by RPAPL § 1306. The DiPrima defendants further contend that a denial of the plaintiff's motion is warranted due to insufficiencies in the plaintiff's proof and the existence of issues of fact with respect to the plaintiff's standing and the defendants' purported default in payment.
First considered is the cross motion (# 002) by the DiPrima defendants as the court's determination thereof may render the plaintiff's motion-in-chief academic. Therein, the DiPrima defendants seek a dismissal of the complaint on the grounds that the plaintiff failed to comply with the pre-action, 90 day notice requirements imposed upon the plaintiff under RPAPL § 1304 and the filing requirements for such notices that are required by RPAPL § 1306. For the reasons stated, the these demands for dismissal of the complaint are denied.
By statutory fiat, statements in a pleading, such as the complaint served in this foreclosure action, are deemed admitted unless they are denied (see CPLR 3018[a] ). A review of the complaint served in this action reveals that in paragraph 5 of the complaint, the plaintiff alleged, among other things, that it "complied with sending the ninety day notices as required by RPAPL § 1304" and that "it is in compliance with RPAPL § 1306, if applicable. The tracking number provided by the New York State Department of Financial Services for the reporting in NS3327774" (see complaint ¶ 5[c]; [d] ). In addition, a review of the answer served by the DiPrima defendants reveals that they failed to deny any of the allegations in paragraph 5 of the complaint and none of the affirmative defenses asserted in the answer allege facts from which challenges to the plaintiff's compliance with either the notice or filing provisions of RPAPL §§ 1304 or 1306 are discernable.
By virtue of the foregoing and the application of traditional rules of New York practice and procedure, the DiPrima defendants are charged with making judicial admissions as to the issue of the plaintiff's compliance with the statutory notice and filing requirements of RPAPL §§ 1304 and 1306 and such admissions are final and binding upon them (see CPLR 3018 ; see also DeSouza v. Khan, 128 A.D.3d 756, 11 N.Y.S.3d 168 [2d Dept.2015] ; Miller v. Bah, 74 A.D.3d 761, 762, 902 N.Y.S.2d 174 [2d Dept.2010] ; Maplewood, Inc. v. Wood, 21 A.D.3d 933, 801 N.Y.S.2d 60 [2d Dept.2005] ; GMS Batching, Inc. v. TADCO Constr. Corp., 120 A.D.3d 549, 551, 992 N.Y.S.2d 264 [2d Dept.2014] ; "Facts admitted in a party's pleadings constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made "). Under these circumstances, this court finds that the asserted grounds for the dismissal of the complaint advanced in the cross moving papers of the DiPrima defendants, namely that the plaintiff failed to comply with default notice and filing provisions of the RPAPL §§ 1304 and 1306, are unavailing as these defenses are not available to the defendants in light of their pleading admissions as to plaintiff's compliance with these statutory provisions. Recent pronouncements set forth in case authorities issued by the Appellate Division, Second Department regarding the nature of a RPAPL § 1304 non-compliance defense and other similar statutory procedural defenses and the burdens of proof with respect thereto do not call for a different result nor any alteration of the foregoing finding. The RPAPL § 1304 non-compliance defense was initially referred to as a "condition precedent" (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609 [2d Dept.2011] ; First Natl. Bank of Chicago v. Silver, 73 A.D.3d 162, 899 N.Y.S.2d 256 [2d Dept.2010] ). As such, the plaintiff's non-compliance with RPAPL § 1304 or § 1303 can be raised at any time "during an action", irrespective of whether the claim of non-compliance is asserted in an answer and a failure to demonstrate compliance was held to warrant dismissal of the complaint (see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609, supra; First Natl. Bank of Chicago v. Silver, 73 A.D.3d 162, 899 N.Y.S.2d 256, supra ).
Nevertheless, more recent appellate case authorities refer to claims of non-compliance with RPAPL § 1304 as a "defense", which is the manner in which it is characterized in RPAPL § 1302 (see Pritchard v. Curtis, 101 A.D.3d 1502, 957 N.Y.S.2d 440 [3d Dept.2011] ), and have held that such defense is not one that is jurisdictional in nature (see Flagstar Bank, FSB v. Jambelli, 140 A.D.3d 829, 32 N.Y.S.3d 625 [2d Dept.2016] ; U.S. Bank N.A. v. Carey, 137 A.D.3d 894, 896, 28 N.Y.S.3d 68 [2d Dept.2016] ; Citimortgage v. Espinal, 134 A.D.3d 876, 23 N.Y.S.3d 251 [2d Dept.2016] ; cf., PHH Mortg. Corp. v. Muricy, 135 A.D.3d 725, 24 N.Y.S.3d 137 [2d Dept.2016] ). Nor is compliance with RPAPL § 1304 an element of the plaintiff's claim for foreclosure and sale, as the plaintiff need not establish compliance with RPAPL § 1304 on an unopposed application for an order of reference upon the default in answering of the obligor/mortgagor defendants (see CPLR 3215 [f]; Flagstar Bank, FSB v. Jambelli, 140 A.D.3d 829, 32 N.Y.S.3d 625, supra; U.S. Bank N.A. v. Carey, 137 A.D.3d 894, 28 N.Y.S.3d 68, supra; PHH Mtge. Corp. v. Celestin, 130 A.D.3d 703, 11 N.Y.S.3d 871 [2d Dept.2016] ). Moreover, the plaintiff need not disprove the defense in the first instance on a motion for a summary judgment if compliance has not been pleaded or the defense has not been asserted in an answer or in papers in which an obligor/mortgagor defendant entitled to the RPAPL § 1304 notice opposes the plaintiff's motion on that ground (see JPMorgan Chase Bank, Nat. Ass'n v. Kutch, 142 A.D.3d 536, 36 N.Y.S.3d 235 [2d Dept.2016] ; Citimortgage v. Espinal, 134 A.D.3d 876, 23 N.Y.S.3d 251, supra; Bank of N.Y. Mellon v. Aquino, 131 A.D.3d 1186, 16 N.Y.S.3d 770 [2d Dept.2016] ).
Although a RPAPL § 1304 non-compliance defense is now more readily viewed as one akin to an affirmative defense, it is no ordinary affirmative defense, as it may be raised at any time during the action. Accordingly, this statutory procedural defense, unlike the affirmative defenses of the type set forth in CPLR 3016, 3018 and 3211(a), is not subject to waiver if not raised in a timely served pre-answer motion to dismiss or in an answer timely served (see Flagstar Bank, FSB v. Jambelli, 140 A.D.3d 829, 32 N.Y.S.3d 625, supra; U.S. Bank N.A. v. Carey, 137 A.D.3d 894, 28 N.Y.S.3d 68, supra ; Citimortgage v. Espinal, 134 A.D.3d 876, 23 N.Y.S.3d 251, supra; cf., Bank of New York Trust Co., N.A. v. Chiejina, 142 A.D.3d 570, 36 N.Y.S.3d 512 [2d Dept. 2016] ; Deutsche Bank Trust Co. Americas v. Cox, 110 A.D.3d 760, 973 N.Y.S.2d 662 [2d Dept.2013] ). Nevertheless, the non-jurisdictional nature of the RPAPL § 1304 "super" defense does not render it immune from waiver (see Emigrant Bank v. Marando, 143 A.D.3d 856, 39 N.Y.S.3d 83 [2d Dept.2016] ; PHH Mtge. Corp. v. Celestin, 130 A.D.3d 703, 11 N.Y.S.3d 871, supra; Deutsche Bank Natl. Trust Co. v. Posner, 89 A.D.3d 674, 933 N.Y.S.2d 52 [2d Dept.2011] ).
Here, the defendants' judicial admissions as to the plaintiff's compliance with the default notice and filing requirements imposed by RPAPL §§ 1304 and 1306, are conclusive and binding upon them and constituted a waiver of the non-compliance defenses upon which the defendants now predicate their cross motion (# 002) to dismiss the complaint. The defendants' demands for a dismissal of the complaint on those grounds are thus denied.
Next considered is the plaintiff's motion-in-chief (# 001) for accelerated judgments and other relief outlined above and the defendants' opposition thereto which is set forth in their cross moving papers. For the reasons stated, the plaintiff's motion is granted.
Entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima facie, by the plaintiff's production of the mortgage and the unpaid note, and evidence of the default in payment (see Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176, 9 N.Y.S.2d 312 [2d Dept.2015] ; Wells Fargo Bank, N.A. v. DeSouza, 126 A.D.3d 965, 3 N.Y.S.2d 619 [2d Dept.2015]; One West Bank, FSB v. DiPilato, 124 A.D.3d 735, 998 N.Y.S.2d 668 [2d Dept.2015] ; Wells Fargo Bank, N.A. v. Ali, 122 A.D.3d 726, 995 N.Y.S.2d 735 [2d Dept.2014] ). In addition, a plaintiff seeking summary judgment should establish that none of the affirmative defenses asserted in the answer or by any defendant have merit (see Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 7 N.Y.S.3d 147 [2d Dept.2015] ; Central Mtge. Co. v. McClelland, 119 A.D.3d 885, 991 N.Y.S.2d 87 [2d Dept.2014] ; Bank of New York v. McCall, 116 A.D.3d 993, 985 N.Y.S.2d 255 [2d Dept.2014] ; Fairmont Capital, LLC v. Laniado, 116 A.D.3d 998, 985 N.Y.S.2d 254 [2d Dept.2014] ; Mendel Group, Inc. v. Prince, 114 A.D.3d 732, 980 N.Y.S.2d 519 [2d Dept.2014] ; Becher v. Feller, 64 A.D.3d 672, 884 N.Y.S.2d 83 [2d Dept.2009] ). Moreover, where, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff also must establish its standing as part of its prima facie showing of its entitlement to judgment as a matter of law (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ; Loancare v. Firshing, 130 A.D.3d 787, 14 N.Y.S.3d 410 [2d Dept.2015] ; HSBC Bank USA, N.A. v. Baptiste, 128 A.D.3d 773, 10 N.Y.S.3d 255 [2d Dept.2015] ).
A foreclosing plaintiff has standing if it is either the holder or the assignee of the underlying note at the time that the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ; Emigrant Bank v. Larizza, 129 A.D.3d 904, 13 N.Y.S.3d 129 [2d Dept.2015] ). Either a written assignment of the underlying note or the physical delivery of it to the plaintiff prior to the commencement of the action is sufficient to transfer the obligation (see id., Wells Fargo Bank, NA v. Parker, 125 A.D.3d 848, 5 N.Y.S.3d 130 [2d Dept.2015] ; U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 5 N.Y.S.3d 116 [2015] ). It is thus the note, not the mortgage, which is the dispositive instrument that conveys standing to foreclose under New York law (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363, supra; Deutsche Bank Natl. Trust Co. v. Monica, 131 A.D.3d 737, 15 N.Y.S.3d 863 [3d Dept.2015] ).
Proof that the plaintiff was in possession of the note on a day certain prior to the commencement of the action is sufficient to establish, prima facie, the plaintiff's possession of the requisite standing to prosecute its claims for foreclosure and sale (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, supra; U.S. Bank Natl. Ass'n v. Godwin, 137 A.D.3d 1260, 28 N.Y.S.3d 450 [2d Dept.2016] ; Well Fargo Bank, N.A. v. Joseph, 137 A.D.3d 896, 26 N.Y.S.3d 583 [2d Dept.2016] ). Where a pre-commencement, note possession date is established by the plaintiff, it is unnecessary to give factual details of the note's delivery in order to establish that possession was obtained prior to the commencement of the action on a particular date (see JPMorgan Chase Bank, Natl. Ass'n v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286 [2d Dept.2016] ). Indeed, the establishment of the plaintiff's possession of the mortgage note on a date prior to the commencement of the action is so conclusive that it renders, unavailing, all claims of defects in allonges (see U.S. Bank v. Askew, 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept.2016] ), and claims of defects in mortgage assignments (see Deutsche Bank Natl. Trust v. Naughton, 137 A.D.3d 1199, 28 N.Y.S.3d 444 [2d Dept.2016] ; Wells Fargo Bank v. Charlaff, 134 A.D.3d 1099, 24 N.Y.S.3d 317 [2d Dept.2016] ; HSBC Bank USA, Natl. Ass'n v. Sage, 112 A.D.3d 1126, 977 N.Y.S.2d 446 [3d Dept. 2013] ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 969 N.Y.S.2d 82 [2d Dept.2013] ; see also Tuthill Fin. v. Abundant Life Church, U.P.C., 122 A.D.3d 918, 998 N.Y.S.2d 387 [2d Dept.2014] ).
The moving papers before this court include an affirmation of plaintiff's counsel and copies of the note and mortgage, the modification agreement and other documents. They also include the affidavit of Darnell Johnson, an employee of Pennymac Loan Services, LLC, the entity that services the subject loan for the plaintiff, and it contains an averment that the plaintiff was in possession of the subject mortgage note on May 25, 2012, which was some nineteen months prior to the commencement of this action by the plaintiff in January of 2014. This averment is sufficient to establish, prima facie, the plaintiff's standing to prosecute its claims for foreclosure and sale in this action against the DiPrima defendants. The affidavit of Mr. Johnson also contains averments that are sufficient to establish the a default in payment on the part of the DiPrima defendants that occurred on November 1, 2011, as alleged in the complaint. In addition, the moving papers of the plaintiff sufficiently demonstrated, prima facie, that none of the affirmative defenses asserted in the answer served by the DiPrima defendants have merit. The plaintiff thus established a prima facie entitlement to summary judgment dismissing the affirmative defenses set forth in the answer of the defendants and summary judgment on the plaintiff's complaint by it in its moving papers.
It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in their answer or otherwise available to them (see Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 943 N.Y.S.2d 551 [2d Dept.2012] ; Grogg Assocs. v. South Rd. Assocs., 74 A.D.3d 1021, 907 N.Y.S.2d 22 [2d Dept.2010] ; Wells Fargo Bank v. Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681 [2d Dept.2010] ; Washington Mut. Bank v. O'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696 [2d Dept.2009] ; J.P. Morgan Chase Bank, N.A. v. Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397 [2d Dept.2009] ; Aames Funding Corp. v. Houston, 44 A.D.3d 692, 843 N.Y.S.2d 660 [2d Dept.2007] ). Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR 3013, 3018[b] ; Katz v. Miller, 120 A.D.3d 768, 991 N.Y.S.2d 346 [2d Dept.2014] ; Becher v. Feller, 64 A.D. 3 672, 677, 884 N.Y.S.2d 83 ; Cohen Fashion Opt., Inc. v. V & M Opt., Inc., 51 A.D.3d 619, 858 N.Y.S.2d 260 [2d Dept.2008] ). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movants' papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ; see also Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept.2012] ; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept.2010] ). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796 [2d Dept.2013] ; Starkman v. City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept.2013] ).
In this matter, only the standing defense, which is set forth in several of the separately stated affirmative defenses of the answer served by the defendants, was asserted in opposition to the plaintiff's motion. All other pleaded affirmative defenses were waived and abandoned and are thus dismissed pursuant to CPLR 3212(b) (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796, supra ).
In addition to the standing defenses, the defendants assert challenges to the nature and quality of the plaintiff's proof of its standing and of the defendants' default in payment. In particular, the defendants assail the affidavit of merit wherein Darren Johnson testified to the plaintiff's possession of the mortgage note on May 25, 2012, which was well before the commencement of this action and his testimony regarding the default in payment that occurred on November 1, 2011. However, this court finds these challenges to be unavailing.
A business record will be admissible if that record "was made in the regular course of any business and ... it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" ( One Step Up, Ltd. v. Webster Bus. Credit Corp., 87 A.D.3d 1, 925 N.Y.S.2d 61 [1st Dept.2011] ; CPLR 4518 [a] ). While "the mere filing of papers received from other entities is insufficient to qualify the documents as business records, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business" (Deutsche Bank Natl. Trust
Co. v. Monica, 131 A.D.3d 737, 15 N.Y.S.3d 863 [3d Dept.2015] [emphasis added]; quoting State v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 956 N.Y.S.2d 196 [3d Dept.2012] citing People v. Cratsley, 86 N.Y.2d 81, 90–91, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ).
Appellate case authorities have thus held that a loan servicer may testify as to payment defaults, notice compliance, standing and other matters relevant to a foreclosing plaintiff's prima facie case, by relying upon records it maintains in the regular course of its business as servicer of the subject mortgage loan (see Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181 [2d Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 28 N.Y.S.3d 444 [2d Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 16 N.Y.S.2d 459 [2d Dept.2015] ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118 [2d Dept.2014] ; see also Deutsche Bank Natl. Trust Co. v. Monica, 131 A.D.3d 737, 15 N.Y.S.3d 863, supra; HSBC Bank USA, Natl. Ass'n v. Sage, 112 A.D.3d 1126, 977 N.Y.S.2d 446 [3d Dept.2013] ; Aames Capital Corp. v. Ford, 294 A.D.2d 134, 740 N.Y.S.2d 880 [1st Dept.2002] ). It is also established law that an assignee or other transferee of the loan documents may rely upon the business records of the loan originator or other predecessors-in-interest to establish such transferee's claims for recovery of amounts due from the debtor so long as it demonstrates that it relied upon those records in the regular course of its business (see Landmark Capital Inv., Inc. v. Li–Shan Wang, 94 A.D.3d 418, 941 N.Y.S.2d 144 [1st Dept.2012] ; see also Portfolio Recovery Assoc., LLC v. Lall, 127 A.D.3d 576, 8 N.Y.S.3d 101 [1st Dept.2015] ).
Upon review of the affidavit submitted in support of the plaintiff's motion, including the affidavit Mr. Johnson, an employee of the plaintiff's servicer, this court finds that said affidavit conforms to the requirements of CPLR 4518(a) (see Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181, supra; Deutsche Bank Natl. Trust Co. v. Monica, 131 A.D.3d 737, 15 N.Y.S.3d 863, supra ). All of defense counsel's challenges to the character and quality of the affidavit of merit and the other submissions of the plaintiff are thus rejected as lacking in merit.
Also rejected as lacking in merit are the defendants' claims that questions of fact exist regarding the issue of the plaintiff's standing. These claims are premised in large part upon the two allonges attached to the note. The first contains a special indorsement by the original lender in favor of CitiMortgage, Inc., the entity that executed the modification agreement. The second allonge contains an indorsement in blank by the plaintiff as attorney-in-fact for CitiMortgage. The defendants, through their counsel, contend that this second allonge is "problematic" since there is no evidence that the plaintiff was appointed as attorney-in-fact for CitiMortgage and, if so, whether it was authorized to issue allonges and indorsements.
As stated above, however, the establishment of the plaintiff's possession of the mortgage note on a date certain prior to the commencement of the action is so conclusive that no further proof is required (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, supra JPMorgan Chase Bank, Nat. Ass'n v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286, supra ), and it renders, unavailing, all claims of defects in the allonges (see U.S. Bank v. Askew, 138 A.D.3d 402, 27 N.Y.S.3d 856, supra ). It also renders claims of defects in mortgage assignments, unavailing, since it is the note, not the mortgage, that is the dispositive instrument (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, supra ). Accordingly, the defendants' complaints about the March 20, 2012 written assignment of mortgage by MERS, as nominee of the original lender, and the March 14, 2013 written assignment of mortgage by the plaintiff, as attorney-in-fact for CitiMortgage, in favor of the plaintiff, are irrelevant (see Deutsche Bank Natl. Trust v. Naughton, 137 A.D.3d 1199, 28 N.Y.S.3d 444, supra; Wells Fargo Bank v. Charlaff, 134 A.D.3d 1099, 24 N.Y.S.3d 317 [2d Dept.2016] ; HSBC Bank USA, Natl. Ass'n v. Sage, 112 A.D.3d 1126, 977 N.Y.S.2d 446, supra; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 969 N.Y.S.2d 82, supra ). Accordingly, the court finds that the plaintiff is entitled to summary judgment dismissing the affirmative defenses asserted in the answer of the defendants and summary judgment on the plaintiff's complaint. The court further finds that the counterclaim set forth in the answer served, which is one for the recovery of counsel fees pursuant to RPL § 282, was rendered academic by the defendants' inability to successfully defend against the plaintiff's claim for foreclosure and sale. Accordingly, the plaintiff is further awarded summary judgment dismissing the defendants' counterclaim.
Those portions of the instant motion wherein the plaintiff seeks an order dropping as party defendants the unknown defendants listed in the caption is granted. Also granted is an amendment of the caption to reflect this change.
The moving papers further established the default in answering on the part of the MERS defendant who failed to appear herein by answer (see HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 4 N.Y.S.3d 47 [2d Dept. 2015] ). Accordingly, the default of all such defendants is hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the answering defendants and has established a default in answering by the remaining defendants served with process, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321 ; Bank of East Asia, Ltd. v. Smith, 201 A.D.2d 522, 607 N.Y.S.2d 431 [2d Dept.1994] ; Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 [3d Dept.1996] ; LaSalle Bank, NA v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup.Ct. Suffolk County 2011], aff'd, 100 A.D.3d 970, 955 N.Y.S.2d 161 [2d Dept.2012] ).
Proposed Order of Reference, as modified by the court to reflect the issuance and terms of this order, has been marked signed.