Bank of New York v Mungro

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Bank of New York v Mungro 2013 NY Slip Op 31101(U) May 8, 2013 Sup Ct, Suffolk County Docket Number: 33836-10 Judge: Hector D. LaSalle Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO.: 33836-10 SUPREME COURT - STATE OF NEW YORK IAS PART 48 - SUFFOLK COUNTY PRESENT: Hon. HECTOR D. LASALLE .Justice of the Supreme Court x . The Bank of New York fka The Bank of New York as successor to JPMorgan Chase Bank, N.A. as Trustee for Holders of SAM1 I1 Trust 2006-AR7, Plaintiff, -against.Jason Mungro, Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for Countrywide Bank, N.A., its successors and assigns, and JOHN DOE #1 through JOHN DOE #10 , the last ten names being fictitious and unknown to the plaintiff, the person o r parties, if any, having or claiming an interest in o r lien upon the mortgaged premises described in the Corn p I a i n t , Motion Date: 10-2512 Adj. Date: Mot. Seq. #001-MotD FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 KENNETH S. PELSINGER, ESQ. Attorney for Defendant Jason Mungro 3601 Hempstead Turnpike, Suite 305 Levittown, New York 11756 Defendants. Upoii the following papers numbered 1 to read on this motion for s u m m a r y judPment and an order 19 of reference; Notice of Motion/Order to Show Cause and supporting papers 1 - 12 ; Notice of Cross Motion and s11 ppor t i n g pa p e rs ; Answering Affidavits and supporting papers 13 - 15 ; Replying Affidavits and supportingpapers 16 - 19 ;Other ( ;( . ) it is, ORDERED that this motion by the plaintiff/counterclaim-defendant for, inter alia, an order: (1) pursuant to CPLR 32 12 awarding summary judgment in its favor and striking the answer, affirmative dcf cnses and counterclaims of the defendant Jason Mungro/counterclaim-plaintiffr (2) amending the caplion; and ( 3 ) pursuant to W A P L 1321 appointing a referee to (a) compute amounts due under the s u l j e c t mortgage; and (b) examine and report whether the subject premises should be sold in one parcel o r multiple purcels, is granted solely to the extent indicated below, otherwise denied; and it is [* 2] The Rank o f N e w York Mellon, et al. v. lason Mungro, et. al. No.: I11dt.~ 33836-10 Pg. 2 ORDERED that the moving parties are directed to serve a copy of this Order with notice of entry upon opposing counsel and upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2 103 (b)( I), (2) or (3) within thirty (30) days ofthe date herein, and to file the affidavits ofserlricc with the Clerk of the Court. This is an action to foreclose a mortgage on residential real property known and described as 12 Wellington Place. Amityville, New York 1 1701 (the property). The defendant Jason Mungro (the defcndant niortgagor) executed an adjustable-rate payment option note dated July 27, 2006 in favor of Countrj~wideBank. N.A. (Countrywide) in the principal sum of $432,000.00. To secure said note, the del enclant mortgagor gave Countrywide a mortgage also dated July 27, 2006 (the mortgage) on the propertj . The mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) was acting solely as a nominee for Countrywide and its successors and assigns and that, for the purposes of recording the mortgage, MERS was the mortgagee of record. By assignment dated April 3,2010 and recorded on March 29,20 1 1. MERS as nominee for Countrywide purportedly transferred its interest in the mortgage together with the note or obligation described and secured by said mortgage, and the monies due to and to grow thereon with the interest to the plaintiff. Thc de fendant mortgagor allegedly defaulted on his monthly payment of interest due on October 1.2008, and cach month thereafter. After the defendant mortgagor allegedly failed to cure his default, the plaintifi comtnenced the instant action by the filing of a summons and verified complaint on September 14.201 0. Issue was joined by the service of the defendant mortgagor s verified answer sworn to on June IS. 201 2. By his answer, the defendant mortgagor admits that he is the owner of the property, but denies all 01 the other allegations therein. In his answer, the defendant mortgagor also sets forth forty-three aflirniati\fe defenses, asserting, inter alia, lack of standing, and ten counterclaims. In response to the counterclaims. the plaintiff filed a reply. The remaining defendants have neither answered nor appeared i n this action. According to the records maintained by the Court s computerized database, in compliance with ;I settlement conference (pre-screening) was held in this Court s specialized mortgage foreclosure conl erence part on December 14, 2010. On that date, this case was dismissed from the conference program and referred to IAS as the defendant mortgagor did not appear or otherwise participate. A settlement/status conference was subsequently held before Part 48 on July 13, 2012 and acI.journec1 a final time to October 19, 2012, at which time this action was again referred as an IAS case. Accordingly. the conference requirement imposed upon the Court by CPLR 3408 and/or the Laws of2008, Ch. 472 5 3-a as amended by Laws of 2009 Ch. 507 4 10 has been satisfied. No further conference is required under any statute, law or rule. CI I .I< 3408 I he plaintiff now moves for, inter alia, an order: ( I ) pursuant to CPLR 3212 awarding summary judgment i n its favor and striking the answer, affirmative defenses and counterclaims of the defendant .Inson Mungro/counterclaim-plaintiff; (2) amending the caption; and (3) pursuant to RPAPL Q 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels. In response, the defendant [* 3] The E3ank o f New York Mellon, et al. \ . Jason Mungro, et. al. Incles NO. 33836-10 Pg 3 mortgagor has filed opposition papers. A reply has been filed by the plaintiff. I n support of the motion, the plaintiff has submitted, inler alia, the pleadings, the mortgage, the note. the assignment, a notice of default, a 90-day notice, affidavits of service, an undated uniform residential loan application allegedly executed by the defendant mortgagor, an affidavit of merit along nit11 a certificate of conformity for same, and an affirmation by counsel. In the complaint, the plaintiff alleges, among other things, that the note and mortgage were assigned to it, and that the plaintiff is in possession of the original note with a proper endorsement and/or allonge. It is the sole, true and lawful owner of the note and mortgage, or has been delegated the authority to institute this mortgage foreclosure action bj the owner and holder of the mortgage and note. The plaintiff further alleges that it has complied with the applicable provisions ofthe Banking Law and the Real Property Actions and Proceedings Laws, unless esenipt from doing so. In his affidavit of merit, an officer of the plaintiffs servicing agent and attorney-in-fact alleges that the plaintiff was the holder of the note prior to commencement and was assigned the mortgage. According to the officer, the instant mortgage loan has been in default continuousl! since October 1, 2008. The plaintiff provided a notice of default as well as a 90-day notice to the defendant mortgagor. The officer further alleges, inter alia, that the 90-day pre-foreclosure notice \vas setit b j certified mail and also by first class mail to defendant mortgagor at his last known address, and il different, to the residence that is the subject of the foreclosure. In his affirmation, counsel requests that the caption he amended to reflect its current full name as the current caption designates a truncated version. I n opposition to the motion, the defendant submits, inter alia, an affidavit by the defendant mortgagor and an affirmation by counsel. In his affidavit, the defendant mortgagor concedes that he cxecuted the mortgagc in favor of Countrywide and delivered it to MERS as nominee for Countrywide. I le also concedes that a foreclosure settlement conference pursuant to CPLR 3408 has been conducted, but that his loan was not modified and this action was not settled. In his affirmation, counsel requests that the motion be denied, arguing that there may be an issue as to standing since MERS as nominee for C ountry\\idc lacked the authority to assign the note to the plaintiff. Counsel also asserts that the assignment of the mortgage to the plaintiff was not recorded at the time this action was commenced. Parcnthetically, in ~vliat appears to be a scrivener s error, and in contradiction to the defendant mortgagor s concession, counsel asserts that a foreclosure settlement conference pursuant to CPLR 3408 has titi er. been held. I11 rcply, counsel avers that the note is a negotiable instrument and includes a provision that Countr>wide may transfer the same. He also avers that the signatory to the assignment was duly authorized to sign the document. Counsel asserts that the plaintiff established its right to summary judgment. arguing that the defendant mortgagor s defenses are meritless and his contentions in opposition are i n apposite. I l k n mo\kig to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law (see, CPLR 321 1 [b]; Vita v New Fork llirste Sen~s.,LLC, 34 AD3d 559, 559, 824 NYS2d 177 [2d Dept 20061). In reviewing a motion to dismiss an affirmative defense, this court must liberally construe the pleadings in favor of the party [* 4] The Hank of New York Mellon, et al. x . Jason hlungro, et. al. It~dex No.: 33836-10 Pg. 4 asserhng the defense and give that party the benefit of every reasonable inference (see, Fireman s Fund tns. Co. v Furrell. 57 AD3d 721, 869 NYS2d 597 [2d Dept 20081). Moreover, if there is any doubt as to the availability o f a defense, it should not be dismissed (see, id.). A defense not properly stated or one that has no merit, Iiowever, is subject to dismissal pursuant to CPLR 32 1 1(b). It, thus, may be the target o f a motion for sunitiiary judgment by the plaintiff seeking dismissal of any affirmative defense after the joinder of issue (Carver Fed. Sav. Bank v Redeemed Cliristian Church of God, Intl. Cliapel, HHH Parislt, Long Is., NY, Inc., 35 Misc3d 1228A, 954 NYS2d 758 [Sup Ct, Suffolk County, May 22,2012, Whelan, J., slip op, at 31). In order for a defendant to successfully oppose such a motion, the defendant must show his or her possession of a bona fide defense, Le., one having a plausible ground or basis which is h i r l y arguable and of substantial character (Feinstein v Levy, 121 AD2d 499, 500, 503 NYS2d 821 [ 2d Dcpt 19861). Self-serving and conclusory allegations do not raise issues of fact (see, Rosen Auto Lensing, Inc. v Jacobs, 9 AD3d 798, 799-800, 780 NYS2d 438 [3d Dept 2004]), and do not require the plaintifl to respond to alleged affirmative defenses which are based on such allegations (Charter One Bnnh, FSB v Leone, 45 AD3d 958, 959, 845 NYS2d 5 13 [3d Dept 20071). A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment b y submission of tlie mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Brrnh v Derrtsclie. 88 AD3d 691,930 NYS2d 477 [2d Dept 201 13; Wells Fargo Bank v Karla, 71 AD3d 1006.896 NYS2d 681 [2d Dept 20101; U asli. Miit. Bank, F.A. v O Connor, 63 AD3d 832,880 NYS2d 696 [ 2d I k p t 20091). The burden then shifts to the defendant to demonstrate the existence of a triable issue of fact as to a boiia fide defense to the action, such as waiver, estoppel, bad faith. fraud, or oppressive or unconscionable conduct on the part of the plaintiff (Capstone Bus. Credit, LLC v Imperia Fnmi!)~ Real[iI, LLC. 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 20101). Where tlie issue of standing is raised by a defendant, a plaintiff must prove its standing in order to bc entitled to relief (see, CitiMortgage, Inc. v Rosentlial, 88 AD3d 759, 931 NYS2d 638 [2d Dept 20 1 I]). A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underl!ing note at the time the action is commenced (see,Bank of N. Y. v Silverberg, 86 AD3d 274,926 NJ S2d 5 3 2 [3d Dept 201 11; U S . Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 20001). 4s a gencral matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as ai1 incident to the note (Bank of N. Y. v Silverberg, 86 AD3d 274, szipi~i 280; see, at Mortgnge Elec. Registration Sys., Inc. v Conkley, 41 AD3d 674,838 NYS2d 622 [2d Dept 20071). By contrast, a transfer ol a mortgage without an assignment of the underlying note or bond is a nullity, and no interest is acquired by it (Bank of N. Y. v Silverberg, 86 AD3d 274, siiprcr at 280; see, LaSalle Bank Natl. Assn. v,4/icarn, 59 AD3d 91 1, 875 NYS2d 595 [3d Dept 20091). Either a written assignment of tlie undcrl! ing note or the physical delivery of the note prior to the commencement of the foreclosure action is sut licient to transfer the obligation ( U S . Bank, N.A. v Collyrnore, 68 AD3d 752, supra at 754). In the instant case. the plaintiff failed to establish, prima facie, that it had standing as its evidence did not demonstrate that the note was physically delivered to it prior to the commencement of the action Deirtsclte Barrk Nntl. Triist Co. v Rivas, 95 AD3d 1061, 945 NYS2d 328 [2d Dept 20121: HSBC Brink USA v Hernandez, 92 AD3d 843,939 NYS2d 120 [2d Dept 20121). In his affidavits, the plaintiffs ccr\icing agent did not give any factual details of a physical delivery of the note and thus, failed to (cc?ci, [* 5] The Rank ol New York Mellon, et al. \ . .lason hlungro. et. al. 33836-10 I11dex No.: Pg.5 establish that the plaintiff had physical possession of the note prior to commencing this action (see, De~tsclie Bunk Nntl. Trust Co. v Barnett, 88 AD3d 636,93 1 NYS2d 630 [2d Dept 201 1 1 ; Aurora Loan Servs., LLC v Weisblunt, 85 AD3d 95, 923 NYS2d 609 [2d Dept 201 1 1 ; U.S. Bank, N.A. v Collymore, 68 AD3d 752, suprn). Also, the note itself does not contain an endorsement, and, in any event, MERS was not a party to the note (see, U.S. Bank Natl. Assn. v Dellarmo, 94 AD3d 746, 942 NYS2d 122 [2d Dept 20 12 1; Bnnk qf N. Y. vsilverberg, 86 AD3d 274, supra). If MERS, as nominee of Countrywide was not the owner of the note, as it appears, it would have lacked the authority to assign the note to plaintiff, and absent an effective transfer of the note, the assignment of the mortgage to plaintiff would be a nullity ( S C C . Kluge v Fugnzy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 19881). Additionally, the plaintiff failed to demonstrate that the note is a negotiable instrument as it is neither endorsed to the plaintiff, nor endorsed in blanh (see, UCC3-104 [a][l];cf,MurtgageElec. RegistrationSys. vCoakley,41 AD3d674, \ i y r u ) . Furthermore, the plaintiff makes no showing that the note has an allonge affixed to it endorsing it o\cr to the plaintiff (see, UCC 3-302[2]; Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208, 542 NYS2d 72 1 [2d Dept 19891). Thus, the plaintiff failed to demonstrate its prima facie burden with respect to thc first al lirmative defense to the extent that it alleges lack of standing. The Court now turns to the def endnnt mortgagor s other affirmative defenses and to the counterclaims. The plaintiff submitted sufficient proof to establish, prima facie, that the remaining affrinative defenses set forth in the defendant mortgagor s answer and the counterclaims asserted therein, however, arc subject to dismissal due to their unmeritorious nature (see,Beclier v Feller, 64 AD3d 672,854 NYS2d 83 [2d Dept 20091; Wells Fargo Bank Minn., Natl. Assn. v Perez, 41 AD3d 590, 837 NYS2d 877 [2d Dept 20071: Coppn v Fnbozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 20041 [un.ru~~ortedc!fJirmative defetiscs arc lucking in tnerit];see also, Albertina Realty Co. v Rosbro Realty Co., 258 NY 472,475-76, 180 N E 176 I 19321 [ uccelerationclause does not conslitute a.forfeiture or penalty and lhefiling of (hc ,siitiiiiion\ tint1 iwified complaint and lis pendens constitutes a valid election to accelerate];FGH Real[y Credit Corp. v VRD Renlty Corp., 231 AD2d 489, 647 NYS2d 229 [2d Dept 19961 [no valid dcfc~tiso cluim ofestoppel where mortgage provision bars oral modification]; Wells Fargo Bank, N.A. or v Vnn Dyke, 101 AD3d 638, 958 NYS2d 331 [lst Dept 20121 Voreclosingplaint~fhas obligation to no riiotJif\lloun hcforc or after n default];Gillman v Chase Manhattan Bank, N.A., 73 NY2d 1, 537 NYS2d 787 119881; Baron ASSOC., L C v Garcia GroupEnters., 96 AD3d 793,946 NYS2d 61 1 [2d Dept 20121 L ii~icon.~C i0iiiil)tlif? gcnercrlly not a defense];CFSC Capital Corp. XXVII v W. J. Baclinian Meclt. Slieet 1l4etnl Co.. 247 AD2d 502,669 NYS2d 329 [1998], lv dismissed 92 NY2d 919,680 NYS2d 459 [ 19981; Connecticirt iVntl. Rank v Peach Lake Plaza, 204 AD2d 909,612 NYS2d 494 [3d Dept 19941 [defense I i i p o i i ilie tloc trine o f unclean hands lacks merit where a defendant fails to come ,forward with ~ ( h i i sihlc c.1~1~1eiic.e s ofshowing immoral or unconscionable behavior];Pntterson vSomerset Invs. Corp., 96 AD3d 8 1 7. 8 1 7, 946 NY S2d 2 17 [2d Dept 20 121 [ aparty who signs a doczrnzent without any valid ~ W - I I I C J for lim itig fiiiled to read it is conclusively bound by its terms ]; Emigrant Mtge. Co, Inc. v Fitzpntrick. 95 AD3d 1 169,945 NYS2d 697 [2d Dept 20 121 [claimed violations of General Business Law $ 3 4 9 C I P I ~ ~ OcwgogSrtnent in deceptive business practices do not generally give rise to claims against a I~ lender/; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 951 [2d Dept 20101 [ iititiffor~~ihilit~~ will not support damages claim against lender and is not a defense to a of loan forcc~lo.tureuclion];Ln Salle Batik Nut. Assn. v Kosarovicli, 3 1 AD3d 904, 820 NYS2d 144 [3d Dept ZOO6 [cLltrttiicrJvro1cilron.s of^the Truth In Lending Act do not constitute affirmative defenses to a [* 6] Ihe Bank of N c w York Mellon, et al. 1 . Jason blungro, et. al. Itldex N O . . 33836-10 Pg. 6 to1.ec~lo.~ui.ctrc~/io17]: GroggvSouth Rd. ASSOCS., 74AD3d 1021, 907NYS2d 22 [2dDept2010] [the L.P., I I I P W tlenicrl of receipf of the notice of default is insuficient to rebut the presumption o f delivery]; il;lnndcirin Trading Ltd. v Wildenstein, 16 NY3d 173, 178, 919 NYS2d 465 [2011]; Morales v AMS Mtge. Sews., Inc.. 69 AD3d 691,692,897 NYS2d 103 [2d Dept 20101 [CPLR 3016[b] requires that the c - i s c i m i ! t m w L \offiaudbe stated in detail, includingspecijk dates and items]; Cliarter One Bank, FSB v Leone. 45 AD3d 958, supra [no competent evidence o an accord and satisfaction];Deutsche Bank f Nut/. Trrrst Co. 1 Canipbell, 26 Misc3d 1206A, 906 NYS2d 779,2009 NY Slip Op 52678O[U] [Sup Ct, Kings County. Dec. 23,2009, Miller, J.] [ adisclosure violation of the Real Estate Settlement Procedures .4c/*12 USC $260 1. ct seq., does not constitute a validdefense to a mortgageforeclosz~re]). Additionally, to the extent that the defendant mortgagor asserts a lack of standing in the remaining affirmative defenses, the) are strichcn as duplicative of the first affirmative defense (see, CPLR 3212[b]). I As the plaintiff duly demonstrated its entitlement to judgment as a matter of law with respect to all dei cnses other than standing and with respect to the counterclaims, the burden of proof shifted to the defendant mortgagor (see. HSBC Bank USA v Merrilf, 37 AD3d 899, 830 NYS2d 598 [2007], Iv di\~iiisse(/ NY3d 967, 836 NYS2d 540 [2007]). Accordingly, it was incumbent upon the defendant 8 mortgagor to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to the other affirmative defenses to the action and as to the counterclaims (.we, Aanies Funding Corp. v Houston, 44 AD3d 692, 843 NYS2d 660 [2007], Iv denied 10 NY3d 704, 857 NYS2d 37 [2005];Baron ASSOC., LLCv Garcia Group Enters., Inc., 96 AD3d 793, supra; Waslz. Miit. Brrnli v l aleiicia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 20121; Grogg v Soutli Rd. ASSOCS., 74 LP, AD3d IO2 1. s i i p i ~ c i ) . In instances where a defendant fails to oppose some or all matters advanced on a motion lor sunimary judgment, the facts. as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see, Kuelzne & Nagel, Inc. v Baiden, 36 N Y U 539, 369 NYS2d 667 [1975]; see also, Madeline D Antlzony Enters., Inc. v Sokolowsky, 101 AD3d 606.957 NYS2d 88 [I Dept 20121;ArgentMtge. Co., LLCvMentesana, 79 AD3d 1079,sz~pra). I n opposition to the motion, the defendant mortgagor has offered no proof or arguments in support o t a n ~of his plcaded defenses, except as to standing, which has been asserted in, inter alia, tlie defendant mortgagor s lirst affirmative defense. The failure to raise and/or assert each of the remaining pleaded defenses and counterclaims in opposition to the plaintiffs motion warrants the dismissal of same as abandoncd under the case authorities cited above (see, Kueline & Nagel, Inc. v Baiden, 36 NY2d 539, .\iipru: .scc crl~o, Madeline D Antlzony Enters., Inc. v Sokolowsky, 101 AD3d 606, supra). Contrary to the asseilion by counsel for the defendant mortgagor, the affidavit of merit by the plaintiffs representative. which has a certificate of conformity attached thereto, is in compliance with CPLR 3 0 9 ( c ) . l7ie remainder of tlie defendant mortgagor s contentions with respect to his non-default by ans\vering the complaint are misplaced and have been disregarded (see, CPLR 3 11 1 [b]; CPLK 3212[b].[cI; \cvgoric ru//uv, EntigrantMtge. Co. Inc. vBeckerman,2013 NY AppDivLEXIS 2469,2013 N Y Slip Op 2535 [2d Dept, Apr. 17, 20131). Under these circumstances, the Court finds that the defendiint mortgagor failed to rebut the plaintiffs prima facie showing of its entitlement to summary j udgmcnt striking a1I affirmative defenses, other than standing, and dismissing all of the counterclaims geiic~rullj~, Rossrock FirrzdII, L.P. v Commack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Ilept 20 IO]; see ~q~noi.ally. Hermitage Ins. Co. TranceNite Club, Inc., 40 AD3d 1032, 834 NYS2d 870 re [* 7] The Rank ofNew York Mellon, et al. v. Jason h4ung1-0,et. al. 11idcsNO.: 33830-10 Pg. 7 12d Dept 20071). The plaintiff. therefore, is awarded partial summary judgment against the defendant mortgagor striking all affirmative defenses, except the first affirmative defense to the extent that it asserts standing as an aflirmative defense, and dismissing all of the counterclaims (see, Argent Mtge. Co., LLC v nfeiitesnnn. 79 AD3d 1079, siipra; Fed. Home Loan Mtge. Corp. v Karastatlzis, 237 AD2d 558, 665 NYS2d 63 1 (2d Dept 19971; see generally, Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]). Accordingly, the affirmative defense enumerated as First is stricken, except as to standing, the affirmative defenses enumerated Second through Forty Third are stricken, and all of the countcrclainis are dismissed pursuant to CPLR 32 12. The branch of tlie instant motion wherein the plaintiff seeks an order amending the caption by substituting Anna Diaz, Patrick Diaz, Hipolito Costallone and Paulito Costallone as party defendants in place of Jolin Doc 1-4, and excising the fictitious defendants sued herein as John Doe #5-10, is granted pursuant to CPLR 1024. By its submissions, the plaintiff established the basis for this relief (see, Flagstar Bniik- I) Bellnfiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 20121; Neiglzborhood Hous. Servs. N.Y. City, Iiic. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Dept 19971). All future proceedings shall be capt i (3 n ed accord i t i gl y . Accordingly, the motion is determined as set forth above. In view of the foregoing, the proposed ordcr suhmitted by tlie plaintiff has been marked not signed. I hc Lhregoing constitutes the Order of this Court. 1)atcd: May 8, 2013 Riverhead, NY FINAL DISPOSITION X NON-FINAL DISPOSITION

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