Wells Fargo Bank, N.A. v Tessler

[*1] Wells Fargo Bank, N.A. v Tessler 2016 NY Slip Op 50252(U) Decided on March 1, 2016 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2016
Supreme Court, Kings County

Wells Fargo Bank, N.A., Plaintiff,

against

Robert Tessler, RIVKY TESSLER, JP MORGAN CHASE BANK, N.A., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, and "JOHN DOE No.1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the complaint, Defendants.



508248/13



Attorney for Plaintiff

Marc J. Gross, Esq.

Frankel, Lambert, Weiss, Weisman & Gordon, LLP

53 Gibson Street

Bay Shore, New York 11706

Attorney for defendant

Moshe M Mortner, Esq.

40 Wall Street 28th Floor

New York, New York 10005
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Wells Fargo Bank, N.A. (hereinafter WFB), filed on March 16, 2015, under motion sequence number one, for an order: (1) striking the joint answer of defendants Robert Tessler and Rivky Tessler (hereinafter the mortgagors) and granting it summary judgment against them pursuant to CPLR 3212; (2) granting a default judgment against all other non-answering defendants pursuant to CPLR 3215; (4) appointing a referee to compute pursuant to the RPAPL 1321; and (5) amending the caption by substituting Zachary Gorden, D.D.S. in place of John Doe # 1 and striking John Doe defendants # 3 through #10 from the caption.

WFB's notice of motion

Affirmation in support

Affidavit in support

Exhibits A-M

Mortgagors' notice of cross motion[FN1]

Affirmation of Rivky Tessler

Memorandum of law in support of cross motion

Affirmation in opposition to cross motion and in

further support of WFB's motion.

Exhibits A-J

Recitation in accordance with CPLR 2219 (a) of the papers considered on the cross motion of the mortgagors filed on May 13, 2015, under motion sequence number two, for an order dismissing the complaint based on WFB's failure to comply with the notice requirements of RPAPL 1304 and 1306.

Mortgagors' notice of cross motion

Affirmation of Rivky Tessler

Memorandum of law in support of cross motion

Affirmation in opposition to cross motion and in

further support of WFB's motion.

Exhibits A-J

BACKGROUND

On December 24, 2013, WFB commenced the instant mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office.[FN2]

The complaint alleges in pertinent part that on September 24, 1996, the mortgagors executed and delivered to GFI Mortgage Bankers, Inc. (hereinafter GFI), a note in its favor in the principal sum of $375,000.00 (hereinafter the note). On that same date, they executed and delivered to GFI, a mortgage (hereinafter the mortgage) encumbering certain real property known as 1537 51st Street, Brooklyn, New York 11219, Block 5458 Lot 64 (hereinafter the subject property) to secure the note. The mortgagors delivered a second note (hereinafter the second note) and second mortgage (hereinafter the second mortgage) to First Financial Equities (hereinafter FFE) in the sum of $13,793.44. The note, mortgage, the second note and the second mortgage were consolidated pursuant to a Consolidation Extension and Modification Agreement (hereinafter CEMA), dated April 9, 1998, to form a single lien in the amount of $385,000.00. A third note and mortgage dated February 12, 2003 was delivered to Wells Fargo Home Mortgage (hereinafter WFHM) in the sum of $133,387.82. The three notes and mortgages were then consolidated pursuant to a Consolidation Extension and Modification Agreement (hereinafter the Second CEMA), dated February 12, 2003, to form a single lien in the amount of $499, 300.00. WFB claims that it is the holder of Second CEMA.

The complaint further alleges that the mortgagors defaulted on making payments due and owing on the note from November 1, 2009 and thereafter. WFB commenced the instant foreclosure action based on the mortgagors' alleged failure to cure their default.

The mortgagors interposed a verified answer dated April 13, 2014, containing general denials and twelve affirmative defenses. The fourth affirmative defense alleges that WFB had improperly accelerated the mortgage loan by failing to serve a notice of default as required by the mortgage agreement. The fifth affirmative defense alleges that WFB has failed to comply with the notice requirements of RPAPL 1304.

The mortgagors are the only defendants who have answered the complaint and who have submitted opposition to the instant motion.

LAW AND APPLICATION

WFB's Motion for Summary Judgment against the Mortgagors

WFB seeks an order pursuant to CPLR 3212 granting summary judgment in its favor against the mortgagors. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In residential mortgage foreclosure actions, as here, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default (see W & H Equities LLC v Odums, 113 AD3d 840 [2nd Dept 2014]).

If the plaintiff makes a prima facie showing, the burden shifts to the defendants to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793 [2nd Dept 2012], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [2nd Dept 1997]).

This branch of WFB's motion is supported by, among other things, an affirmation by Gross, its counsel, and an affidavit of Natalie Bryant (hereinafter Bryant), its Vice President of loan documentation.

The Notice of Default

The mortgagors fourth affirmative defense alleges that WFB failed to serve a notice of default pursuant to the default provisions of the mortgage agreement. They [*2]further allege that proper service of the notice of default is a condition precedent to the commencement of the foreclosure action. Gross addresses the notice of default in the fifth and seventh paragraph of his affirmation. In sum, he states that according to Bryant's affidavit, a notice of default was sent to the mortgagors. He further claims that a copy of the default notice is annexed as exhibit C to the motion. Gross does not claim personal knowledge regarding the sending of the default notice.

Bryant avers in the seventh paragraph of her affirmation that a notice of default was sent to the mortgagors but does not state the date that this was done.

Section 6 (C) of the Second CEMA note pertains to notice of default and states as follows:

"If I am in default the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount. The date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means."

Section 22 of the third mortgage states in pertinent part as follows:

"Lender may require Immediate Payment in Full ... only if all [specified] conditions are met,"

(a) I fail to keep any promise or agreement made in this Security Agreement...

(b) "Lender sends to me ... a notice ...that complies with Section 15 of this Security Agreement ... that states: (1) The promise or agreement that was I failed to keep or the default that has occurred;

(2) The action I must take to correct the default;

(3) A date by which I must correct the default. That date will be at least 30 days from the date on which the notice is given.(4) That if I do not correct the default by the date stated in the notice, Lender may require immediate payment in Full, and Lender or another Person may acquire the Property by means of Foreclosure and Sale;(5) That if I meet the conditions stated in Section 19 of this Security Instrument, I will have the right to have Lender's enforcement of this Security Instrument stopped and to have the Note and this Security Instrument remain fully effective as if Immediate Payment in Full had never been required; and(6) That I have the right in any lawsuit for Foreclosure and Sale to argue that I did keep my promises and agreements under the note and under this Security Instrument, and to present any defenses that I may have; and

(c) I do not correct the default stated in the notice from Lender by the date stated therein.

The pronouns "me" and "I" in the note and mortgage refer to the borrower.Section 6 (c) of the note and Section 22 (b) (3) of the mortgage both require that the borrower be given a date at least thirty days from the date the notice is given to cure the default. Section 22 of the mortgage, however, makes the giving of a default notice that complies with its content requirement a condition precedent to accelerating the mortgage.

As previously indicated, although the notice of default annexed as exhibit C to the motion is dated November 28, 2011, no one is claiming from personal knowledge that this is the date that it was sent to the mortgagors. The notice states that in order to cure the default the overdue payment must be paid on or before December 28, 2011.

In order to comply with Section 6 (c) of the note and Section 22 (b) (3) of the mortgage, the mortgagors had to be given a date to cure the default that was at least thirty days after November 28, 2011. Therefore, assuming for the sake of argument that the default notice was mailed to the mortgagors on November 28, 2011, it did not comply with the minimum requirement set forth in either the note or mortgage. Giving the requisite notice of default is a condition precedent to acceleration, which is a requirement for seeking the equitable remedy of foreclosure (see Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982, 983, [2nd Dept 2014]). WFB failed to show that it complied with the condition precedent that it give the borrower a proper default notice prior to demanding payment of the loan in full. Accordingly, its motion for an order pursuant to CPLR 3212 granting summary judgment in its favor as against the mortgagors is denied without the need to consider the sufficiency of the mortgagor's papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

WFB's Motion to Strike the Mortgagors' Answer

WFB seeks an order striking the mortgagors' answer by claiming, among other things, that it is baseless, frivolous and a sham. The mortgagors' answer consists of numerous denials and twelve affirmative defenses. Motions to strike a pleading are generally associated with sanctions for disclosure violations pursuant to CPLR 3126.

WFB's motion papers are ambiguous on whether its seeks dismissal of the mortgagors' affirmative defenses pursuant to CPLR 3211 (b); CPLR 3212 or some other basis. The difference is not without consequence.

The proponent of a summary judgment motion pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact regarding the affirmative defenses (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

When moving to dismiss an affirmative defense pursuant to CPLR 3211 (b), the plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law" (see Vita v New York Waste Services, LLC, 34 AD3d 559 [2nd Dept 2006]). In reviewing such a motion this Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721 [2nd Dept 2008]).

Rule 103 of the old (pre—1963) Rules of Civil authorized a motion to strike a denial if it was found to be a sham. The CPLR has no such motion. The motion to strike a pleading as a sham no longer exists under the CPLR (see Whitmore v City of New York, 61 AD2d 795 [2nd Dept 1978] citing Chicago Dressed Beef Co. v Gold Medal Packing Corp., 22 AD2d 1010 [4th Dept 1964]). Pursuant to CPLR 3211 (b), a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. However, a CPLR 3211 (b) motion cannot be used to strike general denials as contrasted with specific defenses such as those contained in CPLR 3018 (b) (see City of Rochester v Chiarella, 65 NY2d 92 [1985]).

Therefore, the motion to strike that portion of the mortgagors' answer containing denials must be denied. With regard to striking of the twelve affirmative defenses, WFB did not specify whether its motion is pursuant to CPLR 3211 (b), CPLR 3212 or some other procedural vehicle. The ambiguity prevents the Court from applying the correct standard of review against the mortgagors' affirmative defenses. Accordingly, this branch of WFB's motion is denied on procedural grounds without prejudice.

WFB's Motion For a Default Judgment and Order of Reference

WFB seeks a default judgment against all other non-answering defendants pursuant to CPLR 3215 and an order of reference pursuant to RPAPL 1321. As a preliminary matter, however, the Court reviews WFB's compliance with the mandatory pre-commencement notices prior to reviewing the requirements for an accelerated judgment or for the appointment of a referee.

RPAPL 1321 provides in pertinent part as follows:

If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.

When seeking an order of reference to determine the amount that is due on an encumbered property, WFB must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01 [4] [k] [note: online edition]).

RPAPL 1303 was enacted in July 2006, as part of the Home Equity Theft Prevention Act (hereinafter HETPA) (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 [2nd Dept 2010]; Senate Introducer Mem. in Support, Bill Jacket, L.2006, ch. 308, at 7—8)(Board of Directors of House Beautiful at Woodbury Homeowners Ass'n, Inc. v Godt, 96 AD3d 983 [2nd Dept 2012]). As relevant here, that section provides that "[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to ... any mortgagor if the action relates to an owner-occupied one-to-four family dwelling" (RPAPL 1303 [1] [a] ) (Id.). The statute "requires the foreclosing party in a residential mortgage foreclosure action to deliver statutory-specific notice to the homeowner, together with the summons and complaint" (First Natl. Bank of Chicago v Silver, 73 AD3d at 165). "[T]he foreclosing party has the burden of showing compliance therewith and, if it fails to demonstrate such compliance, the foreclosure action will be dismissed" (Id. at 166).

The full text of RPAPL 1303(1) now reads:

The foreclosing party in a mortgage foreclosure action, which involves residential real property consisting of owner-occupied one-to-four-family dwellings shall provide notice to the mortgagor in accordance with the provisions of this section with regard to information and assistance about the foreclosure process (Countrywide Loans v Taylor, 17 Misc 3d 595, 843 N.Y.S.2d 495 [NY Sup Ct Suffolk Co. 2007]).

The statutorily required language of the notice is set forth in RPAPL 1303(3), which became effective February 1, 2007. The appearance and procedural details of the notice are set forth in RPAPL 1303(2), which also became effective February 1, 2007 and which states:

The notice required by this section shall be delivered with the summons and complaint to commence a foreclosure action. The notice required by this section shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type. The notice shall be on its own page.

In this action, the WFB's summons and complaint and notice of pendency were filed with the County Clerk on December 24, 2013, after the effective date of RPAPL 1303, thereby requiring compliance with the notice provisions set forth in the statute (WMC Mortg. Corp. v Thompson, 24 Misc 3d 738 [NY Sup Ct Kings Co.2009]). Given the explicit statutory requirements regarding the content, type size and paper color of the notice, WFB must submit proper evidentiary proof to establish full compliance with the substantive and procedural requirements of RPAPL 1303.

CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. Gross avers in paragraph nine of his affirmation that all the defendants were served with copies of the commencement papers and with the foreclosure homeowner's notice in accordance with RPAPL 1303. Gross then refers to exhibit F as copies of the affidavits of service of the commencement papers and the RPAPL 1303 notice. Exhibit F contain copies of affidavits of service of the commencement papers but does not contain a copy of the RPAPL 1303 notice. Bryant's affidavit makes no mention of RPAPL 1303.In sum, the motion papers do not contain a copy of the RPAPL 1303 notice purportedly sent to the defendants. Accordingly, WFB did not provide a sufficient basis upon which the court may conclude as a matter of law that WFB has complied with the statute (Countrywide Loans v Taylor, 17 Misc 3d 595 [NY Sup.Ct. Suffolk Co. 2007]).

Since WFB has failed to establish compliance with the notice requirements of RPAPL 1303, its application for an order of reference must be denied (Id.).

RPAPL 1304 provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type" (RPAPL 1304 [1]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304 [1] ), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (RPAPL 1304 [2]; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]).

RPAPL 1304 currently applies to any home loan, as defined in RPAPL 1304(5)(a). When the statute was first enacted, it applied only to high cost, subprime, and non-traditional home loans (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 104 [2nd Dept 2011] [citing L.2008, ch. 472, § 2] ). In 2009, the Legislature amended the statute, "effective January 14, 2010, to take its current form, by deleting all references to high-cost, subprime, and non-traditional home loans" (Aurora Loan Servs., LLC, 85 AD3d at 105 [citing L.2009, ch. 507, § 1—a]).

"[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013] citing, Aurora Loan Servs., LLC, 85 AD3d at 106).

Gross's affirmation and Bryant's affidavit are the only documents within the instant motion which address service of the RPAPL 1304 notice. Paragraph thirteen of Gross's affirmation refers to Bryant's affidavit as evidence of WFB's compliance with the statute. Gross's affirmation, however, does not state the date, the address, the method of mailing or name of the recipient of the RPAPL 1304 notice. Bryant's sole reference to RPAPL 1304 is in paragraph five of her affidavit. Therein she states the following: "I have reviewed the 90-[*3]day pre-foreclosure notice[FN3] sent to the borrower(s) by certified mail and also by first class mail to the last known address of the borrower(s), and if different, to the residence that is the subject of the mortgage and a copy of said notice(s) is attached."

WFB admits that the notice requirements of RPAPL 1304 apply to the instant action and through its counsel and its officer, avers that WFB complied with the statue. Bryant's affidavit much like Gross's affirmation does not give the date of the mailing or the mailing address that the notice was sent. Bryant also does not refer to Robert Tessler or Rivky Tessler by name as the individuals to whom the mailing was sent, instead stating that the notice was sent to the borrowers. Bryant does not state that she personally served the 90-day pre-foreclosure notice or identify the individual who did so. Nor does she refer to a standard office practice by WFB to ensure that items are properly addressed and mailed (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877 [2nd Dept 2012]). The presumption of receipt by the addressee "may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed" (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept 2001]). WFB has, therefore, failed to submit an affidavit of service evincing that it properly served the mortgagors pursuant to RPAPL 1304 (Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910 [2nd Dept 2013]). Consequently, WFB has not demonstrated strict compliance with RPAPL 1304.

In light of the foregoing, plaintiff's motion for an order granting a default judgment against all other defendants pursuant to CPLR 3215 and for an order of reference pursuant to RPAPL 1321 is denied.

Mortgagors' Cross Motion to Dismiss the Complaint

The mortgagors did not specify whether their cross motion was made pursuant to CPLR 3211 or 3212. Viewing the cross motion papers in their entirety, it can fairly be said that mortgagors and WFB laid bare their proof, submitting extensive extrinsic documentary evidence and evidentiary affidavits setting forth their respective position and thus charted a summary judgment course (See Harris v Hallberg, 36 AD3d 857 [2nd Dept 2007]).

The mortgagors claim that they did not receive the 90-day pre-foreclosure notice required by RPAPL 1304. The motion is supported by an affirmation of Rivky Tessler[FN4] . She affirms that the subject property is her home and that she resides there with her husband, the co-defendant Robert Tessler. She further affirms that neither she nor her husband received the notice 90-day pre-foreclosure notice required by RPAPL 1304 either by regular or certified mail at the subject property or by any other method anywhere else.

As previously indicated, WFB did not submit an affidavit of service of the 90-pre-commencement notice as part of its motion papers. It therefore did not create a presumption of mailing and receipt by the mortgagors (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2nd Dept 2001]). Had it done so, the mortgagors claim of non receipt would [*4]have been insufficient to rebut the presumption of proper service created by the affidavit of service (see 425 East 26th Street Owners Corp v Beaton, 50 AD3d 845 [2nd Dept 2008]). Consequently, Rivky Tesslers' affirmed allegation of non receipt is sufficient to meet the mortgagors' prima facie burden to show that WFB did not send the 90-day pre-foreclosure notice required by RPAPL 1304.

By meeting their burden, the burden shifted to WFB to raise a triable issue of fact of proper service of the 90-day pre-foreclosure notice on the mortgagors. In opposition to the motion WFB submitted an affidavit of Heather Fronk (hereinafter Fronk). Fronk, like Bryant, has described herself as the Vice President of loan documentation of WFB. In paragraph three of her affidavit she stated the following:

I hereby certify and affirms that, in compliance with RPAPL 1304, a notice as required by said statute was sent, separate from any other mailing or notice, enclosed in both a certified mail postage prepaid envelope and also a first-class mail, postage pre-paid , sealed envelope. Both envelopes were provided to the United States Post Office for mailing addressed to Robert Tissler and Rivky Tessler at the address of the residence that is subject to the mortgage and, if different from Robert Tissler and Rivky Tessler's address that is subject to the mortgage to Robert Tissler and Rivky Tessler's last known address. Proof of the Certified mailing is attached.

She separately stated in paragraph four that the notices were mailed on July 19, 2013. Contrary to Fronk's claim there was no document certifying a mailing on July 19, 2013. Fronk's affidavit was ambiguous regarding the address in which the notice was purportedly sent. It also failed to set forth a standard office practice by WFB to ensure that items are properly addressed and mailed (Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877 [2nd Dept 2012]). Overall Fronk's claim of proper mailing of the 90-day pre-foreclosure notice was unsubstantiated and conclusory (see Cenlar, FSB v Weisz, —- N.Y.S.3d ——, 2016 WL 619740, 2016 NY Slip Op. 01147 [2nd Dept 2016]). It was therefore insufficient to raise a triable issue of fact regarding its compliance with the notice requirements of RPAPL 1304. Accordingly, the mortgagors' cross motion to dismiss the complaint for failure to comply with RPAPL 1304 is granted.

WFB's Motion to Amend the Caption

Through the affirmation of its counsel, Marc J. Gross (hereinafter Gross), WFB has demonstrated that Zachary Gorden, D.D.S. and John Doe # 2 were served the commencement papers and that there are no other "John Does" occupying the mortgaged premises. There is no opposition to this branch of WFB's motion. Accordingly, its motion seeking to substitute John Doe # 1with Zachary Gorden and to strike John Doe # 3 through John Doe # 10 would ordinarily be granted (Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 [2nd Dept 2014] citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]). However, inasmuch as the complaint is dismissed this branch of WFB's motion is rendered academic.

CONCLUSION

That branch of WFB's motion which seeks an order granting it summary judgment in its favor as against the mortgagors is denied.

That branch of WFB's motion which seeks an order striking the mortgagors' answer is denied.

That branch of WFB's motion which seeks a default judgment against all other [*5]non-answering defendants is denied.

That branch of WFB's motion which seeks an order appointing a referee to compute pursuant to the RPAPL 1321 is denied.

That branch of WFB's motion which seeks an order amending the caption by substituting Zachary Gorden, D.D.S. in place of John Doe # 1 and striking John Doe defendants # 3 through #10 from the caption is rendered academic.

The mortgagors' cross motion for an order pursuant to CPLR 3212 dismissing the complaint as against them due to WFB's failure to comply with the notice requirements of RPAPL 1304 is granted.

The foregoing constitutes the decision and order of this Court.

Enter: J.S.C. Footnotes

Footnote 1:Mortgagors' notice of cross motion also serves as opposition to WFB's motion. WFB also submitted an affirmation in opposition to mortgagors' cross motion.

Footnote 2:The action was commenced by filing the commencement papers using the electronic filing system. In accordance with 202.5-b (2) (vii) of the Uniform Rules of the New York State Trial Courts WFB and the mortgagors submitted a hard copy of the complete set of the instant motion and cross motion papers. The instant decision and order is based on the Court's review of the hard copy of the motion papers.

Footnote 3:The Court deems WFB's reference to the 90-day pre-foreclosure notice to be the pre-commencement notice required by RPAPL 1304 and adopts the reference.

Footnote 4:Any person who, for religious or other reasons, wishes to use an affirmation as an alternative to an affidavit may do so. However, to be effective such an affirmation must be made before a notary public or other authorized official (CPLR 2309). Rivky Tessler did so in this instance.