Allfour v Bono

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Allfour v Bono 2018 NY Slip Op 31288(U) June 21, 2018 Supreme Court, Suffolk County Docket Number: 041887/2010 Judge: James Hudson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] rNoEx No. SHORT FORM ORDER o4C:OJ:!Y SUPREME COURT - ST A TE OF NEW YORK IAS PART 40 - SUFFOLK COUNTY PRESENT: Hon. JAMES HUDSON Acting S upreme Court Justice _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ x ALLFOtm DBA ALBARANO HOLDING CO. MOTrON DATE: 6-6-16 (0 10) 12-21-16 (01 I) AD.J. DATE: Plaintiff, 6-27-16 (OJO) File R<·assigned to this IAS Part 40 Mot Seq. #: 010-MG Mot Seq. #: 011 -MD -against- SALVATORE BONO, GEOFFREY M. PARKINSON, and LAURA J. NILES FOUNDATION INC., C/0 1MICHAEL G. LANGAN, PUBLIC ADMINISTRATOR OF SUFFOLK COUNTY, ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, and ",John Doc" and/ or "Jane Doe," "(said na me hcing fi ctitious it being the intention of Plaintiff lo designate any and all occupants of the premises being foreclosed herein , and any parties corporations or entities if any, having or claimin g an interest or lien upon the mortgaged premises.)" CHRISTOPHER THOMPSON, ESQ. Attorney for P laintiff 33 Davison Lane East West Is lip, NY 11795 FRANCESCO TINI, ESQ. A ttorncy for Defendant Salvatore Bono 425 Oak Street Copiaguc, NY 11726 Defendants. Upon th<.: n:adi11g and fi ling of th e following papers in this mull<.:r: t t ) no lie<.: of mot im1 by th e plaint iff, dated M ay t I, 2 0 16, nnd s upporting papers: (2) the aftinrnllion of the defendant Salvatore Bono's former counsel, Francesco P. Tini, Esq., dated June 20, 20 16 in opposition to the plaintiff's motion; (3) the affirmation in reply of the plaintiff's counse l, Christopher T hompson, Esq., dated June 29, 2016: ( 4 ) notice of motion by the defendant, Salvatore Bono. dated December 14, 20 16; the affirmation of the plaintiff's counsel, Christopher Thompson, Esq .. dated January I 0, 2017 in opposition: (5) the atlidavit in reply of the defendant, Salvatore Bono, sworn to on January JO, 20 17; (6) stipulation to adjourn dated June 3, 2016; (7) unsworn letters from Salvatore Bono dated December 13 and 21, 2017 ; and now it is ORDERED that this motion (#010) by the plaintiff. and the motion (#011) by the defendant Salvatore Bono. which was improperly labeled a cross motion, arc consolidated for the purposes of this determination; and it is ORDERED that this motion by the plaintiff for. inter alia, an order: (I) pursuant to CPLR 32 12 awarding summary judgment in its favor and against the defendant Salvatore Bono, striking his answer and dismissing the affirmative defenses and counterclaims asserted therein; (2) pursuant to CPLR 32 15 fixing the defaults of the nonanswcring defendants; (3) pursuant to RPAPL 1321 appointing a referee to (a) compute amounts due under the subj ect mortgage: and (b) examine and report whether the subj ect premises should be sold in one parcel or mulliple parcels; and (4) amending the caption is granted; and it is [* 2] All four dbn Albarann I lolding Co. v Bono, et. al. lndex o.: 041887/20 I 0 Pg. 2 ORDERED that the plaintiff is awarded summary judgment dismissing the affirmative defenses asserted in the answer. all with prejudice: and it is ORDERED that pursuant to CPLR 321 S(c) the counterc laims asserted in the answer are dismissed as abandoned; and it is ORDERED that the caption is amended by excising the fictitious defendants "John Doe·· and ..Jane Doc,.. together with the related descriptive wording relating thereto; and it is ORDERED that this motion by the Jefendant Salvatore Bono for, inter alia. an order: (I) denying the plaintiffs motion for summary judgment; and (2) awarding summary judgment in his favor against the plaintiff, and granting him certain declaratory relief voiding and discharging the mortgage; (3) fixing the defaults of certain other indiv iduals purported to be third-party defendants: and (4) awarding him punitive damages is denied: and it is ORDERED that the plaintiff shall scn·e a copy of this order with notice of entry amending the caption and dismissing the counlcrclaims upon the Calendar Clerk of this Court within thirty (30) days of the date herein: and it is further ORDERED that counsel for the plaintiff shall serve a copy of this order with notice of entry by first-class mail upon the defendant Salvatore Bono at his lasl known address or record. 70 Sandy Hollow Drive, Smithtown, New York 11787 anJ all olher appearing parties that have not waived further notice wi thin thirty (30) days of the date hcrci n, and he shal I promptly ti le the affidavits of service with the Clerk of the Court. This is an action to foreclose a mortgage on certain real property known as 885 Manor Lane, West Bay Shore New York 11706 ( .. the property'"), and allegedly O\.Vned by the defendant Salvatore 8ono ("Bono'} Bono defau lted on a note given by him on February 2. 2004, by fai ling to make the monthly payment of principal and interest due on or about February I. 2005. and each month thereafter. Alier Bono failed to cure the de ta ult in payment, the plaintiff commenced this action by the filing of the lis pendcns, summons and complaint on November 17, 2010. Issue was joined by the interposition of Bono's answer, with an atlat.:hed verification sworn to on March 24, 20 I I. Th1: remaining defendants have neither answered nor appeared herein. Jn the answer. l3ono denies all of the allegations in the complaint and asserts twenty-three affirmative defenses. alleging, inter ali a. the statute of frauds. fra ud in the origination and closing or the subject loan, the doctrine or unclean hands, cstoppcl. unconscionabi lity, the failure to join all necessary parties, the statute of limitations, and the Federal Truth in Lending Act. In his answer, Bono also asserts seventeen counterclaims, alleging, among other things. fraud and slander of title. In response, the plaintiff served a reply dated July 30, 2012. whereby it denies al I of the material allegations in the counterclaims. Simultaneous with the answer. Bono filed a notice of removal to the U.S. District Court, Eastern District, however. this case ,~·as referred back to the Supreme Court (see, Al/four v Bono, I l-CV- 1619, 2011 US Dist LEXIS 67389, 2011 WL2470742 [EDNY 201 IJ, report and recommendation adopted by20 1 I US Dist LEXIS [* 3] J\llfour dba J\lbnrano I lold ing Co. v Bono, et. al. Index o.:04 1887/2010 Pg. 3 67442, 2011 \J..' l. 2470734 IEDNY 2011]). ln the answer and notice of remova l, Bono purports to interpose a third-pany action. howc\'cr. a third-party action" as never commenced in thi s court (see . CPLR 304, I 007, 2012). On June 22. 201 1. ajuJgmcnt was also entered in the United States District Court. Eastern District ofNew York remanding this state court action to thi s court and closing the federal case. Thereafter. by order dated August l, 2012 (Emerson . .J .), a motion by 130110 for an order dismissing the complaint insofar as asserted against him was denied. and a motion by the plainti ff for. among other things, an order ::imcnding the complaint and the notice of pendcncy was grnntecl to the extent that the plaintiff was permitted lo serve and Ii le an am1.:ndecl complaint adding three j udgmcnt creditors and a notice of pendency within JO days artcr the date of entry or said order (see, All/our v Bono, 20 12 NY Misc LEXIS 3 708, 20 12 WL 3230701 [Ul, 2012 NY Slip Op 320381 UJ !Sup Ct, Suffolk Cmmty 20 l 2J). Alter the plaintiff filed and served the supplemental summons and amended complaint adding three creditors, Bono interposed an answer to the amended complaint, with an attached verification sworn to on February 20, 2014. even though another answer was not required (see, CPLR 30251 d !). In the second answer, Bono docs not set forth any speci tic atlirmative defenses and counterclaims. but instead alleges that he "incorporates and restates all or the c ]ounterclaims set forth in hi s fv]erilied la Ins' er, laJfft nnative [d] efenses and [cJountcrclaims dated March 24 , 2011, as if more particularly set forth herein." It is not known whether the answer to the original complai nt was attached to and served with the answer to the amended complai nt. Although the plaintiff interposed a reply to the counterclaims in the 2011 answer. a reply to the counterclaims in the 2014 answer was never interposed (see. CPLR 30 11 ). r By order dated August 7. 20 14 (Emerson. J.), a motion by Bono to dismiss the plaintiffs amended complaint was denied. ln its detem1ination, the Court found, inter alia, that the plaintiff had demonstrated its stand ing to sue in this action. The Court also found that the statute of limitations was inapplicable because the subjec t mortgage loan was in writing. The plai ntilTnow moves for, inter alia, an order: ( 1) awarding summary judgment in its favor and against Bono, striking hi s answer and dismissing the affirmative defenses and counterclaims asserted therein; (2) pursuant to CPLR 32 15 fixing the defaults of' the non-answering defendants; (3) pursuant to RP APL § 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 parcel s~ and (4) amending the caption. Thereafter, by stipulation dated June 3, 2016, the plaintiffs rnotion was adjourned to June 27, 2016 for the purpose of allowing Bono to file opposition papers. After securing said adj ournment, Bono responded by moving six months later for, inter alia, an order: ( l ) denying the pl ai ntiff s motion for summary judgment; and (2) awarding summary judgment in his favor against the plaintiff, and granting him certain declaratory relief \'oidi ng and dis<.:harging the mortgage; (3) fixing the defaults of certain other individuals purported to be thirdparty defendants: and (4) awarding him punitive damages. By way of further background, after the submission of these motions. this action was transferred from the inventory or the I lonorablc William G. Ford, J.S.C. to thi s IA S Part 40 upon Justice Ford's recusal by written order dated Ma) 17, 20 18. Even though no excuse was proffered by l3ono for the untimely motion, because the plain ti ff addressed the merits of the same and because there is no prejudice in light of the recent re-assignment of this action, the court, in the exercise of its discretion, considers the dismissal motion (compare, Rodriguez v Tiwari, 265 AD2d 247, 697 NYS2d 24 [ I >t Dept I 999J , with Romeo v Be11-Sopll Food Corp. , 146 A02d 688, 537 NYS2d 52 f2d Dept 19891). In the interest of judicial t'.conomy, these two motions are consolidated fbr the [* 4] /\11 four dba /\lbarano I lolding Co. v Bono. et. al. Index No.: 041887/2010 Pg.4 purposes of this determination, and the court turns lirst to I3ono·s motion , which was improperly denominated a cross motion. At the outset. Bono 's cross motion is procedurally defective to the extent that the moving papers submitted herein do not fully recite the grounds for the relief sought along with the specific provisions of the civil practice law and rules relating thereto (see. CPLR 2214 [a I). To the extent that the requested relief is supported by and af'tidavit from Bono. it has been considered. The branches or Bono's cross motion for a default judgment pursuant to CPf .R 3215 against the plaintiff and the pu rported third-party dt:!'endants are denied because. as noted above. n third-party action was never commenced in this Court (see, CPLR 304, I 007, 20 12). In this case, the remand by the District Court merely sent the plaintirrs roreclosure action back to this Court. and Bono's attempt to engrafi a third-party action on to this action by amending the caption of' his moving papers is improper and or no effect. Parenthetically, the court notes that the so-ordered stipulation dated February 6, 2014 (Emerson. J.). the compliance conference order (Emerson, J.) and the note of issue filed by the plain ti ff, maintained in the Suffolk County Clerk's physical file for this action, do not include any reli.:rcncc to a third-party action. E\·cn if a third-party action had been filed. Bono has not demonstrated that he has any bona fide claims against the plaintiff or any other party to this action; nor has he demonstrated that he sustai ncd, or would be entitled to, any damages (see. U.S. Bank N.A. v Slavinski, 78 AD3cl I 167. 912 NYS2d 28 5 1 Dept 20 l OJ; U.S. Bauk N.A. v Pia, 73 AD3d 752, 90 I NYS2d l 04 [2d Dept 20 IO]; .2d ladino v Bank ofAm. , 52 AD3d 571. 861 NYS2d 683 [2d Dept 20081). The branch or Bono's cross motion for summary judgment and certain declaratory relief against the plaintiff by voiding and discharging the subject mortgage is denied because a reply in response to the 2014 answer was never interposed (see, Blue l s. Dev., LLC v Town of Ifempstead, 131 AD3d 497, 501, 15 NYS3d 807 [2d Dept 20151). /\motion for summary judgment may not be made before issue is joined (see. CPLR 3212 [a]) and the requirement is strictly adhered to (Roch ester v Cltiarella. 65 'Y2d 92, l 01-102. 490 NYS2d 174 [ 1985)). Under the circumstances presented herein, the counterc laims arc dismissed as abandoned in their entirety pursuant 10 CPLR 32 I 5(c) (see. Giglio v NT/MP. Inc.. 86 AD3d 30 I, 926 NYS2d 546 l2d Dept 20 11 1). Bono foiled to show any reason for the tvvo year delay in moving herein (after the plai ntiff already moved for summary judgment); nor has Bono established that the counterclaims arc meritorious (see. Ahdourulwm(lne v Public Stor. Institutional Fund. I 13 A D3d 644. 978 NYS2d 685 [2d Dept 20 I4] [complaint fai led to state a cause of action sounding in fraud I; L(ldi110 v Bank ofAm.. 52 AD3d 571. suprn I negligent imposter fraud is not a recognized tort in New York I). Also, to the extent that the counterclaims are based upon fraud and misrepresentation, they are untimely (see, CPLR 213 l8J: Williams-Guillaume v Bank of Am., N.A .. I 30 AD3d I 016. 14 NYS3d 466 (2d Dept 2015]; Pike v New York l.ife Ins. Co. , 72 /\D3d I 043, 90 1 NYS2d 76 [2d Dept 20 IO]). The cou11 next turns to the motion-in-chief. /\ plaintiff in a rno1tgagc foreclosure action estab lishes a prima l'acie case for summary judgment by submission ofthe mortgage, the note, bond or obligation, and evidence or default (see, Valley Natl. Bank v D eutsclt, 88 /\D3d 691, 930 NYS2d 477 [2d Dept 20 11 ]; Wells Fargo Bank v Das Karla. 71 AD3d I 006. 896 )1YS2d 681 [2d Dept 20 IO]; Wasltillgto11 Mut. Bank, F.A. v O'Connor. 63 A03d 832. 880 NYS2d 696 (2<l Dept 2009]). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fac t as to a bona 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 Imperil1 Family Realty, LLC. 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 20 l O], quoting Malwpac Natl. Bank v Baisley, 244 AD2d 466, 467 , 644 NYS2d 345 f2d Dept 19971). [* 5] All four dba Albarano I folding Co. v Bono, et. al. Jndex ?\lo.: 04 1887110 I 0 Pg. S l3y its submissi ons. the plaintiff established its prima fac ie entitlement to summary judgment on the complaint (see. CPLR 32 12; RP APL§ 132 1; U.S. Bank N.A. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 20 12 1 Capital One, N.A. v K110//wood Props. 11, LLC. 98 AD3d 707. 950 N YS2d 482 (2cl Dept 2012] ). l n the ; instant case, the plaintiff produced, inter alia, the note. the mortgage and evidence of nonpayment (see, Federal Home loan Mtge. Corp. v Karastathis , 237 /\D2d 558, 655 NYS2d 631 L2d Dept 19971; First Trust Natl. Assn. v Meisels, 234 AD2d ~ 14, 651 NYS2d 111 [2d Dept 19961). Thus. the plaintiff demonstrated its prima facie burden as to the merits of thi s foreclosure action. The plaintiff submitted suflicient proof to establish. prima foc ie, that the affirmative defenses set forth in the un!lwcr are subjec t to dismissal due to their unmeritorious nature (see. Becher v Feller, 64 AD3d 672, 884 N YS2d 83 12d Dept 20091 [unsupported aflirmative defenses are lacking in merill: see also. Gillmlln v Chase Manhattan Bank, N. A., 73 1Y2cl I. 537 NYS2d 787 f 1988] [unconscionability generally not a defcnsej; S cholastic luc. v Pace Plumbing Corp., 129 A03d 75 , 8 NYS3d 143 f !51 Dept 20 151 [compound, boilerplate defenses an: in contra \'ention of the civil practice rules]; Emigrant Mtge. Co., /11 c. v Fitzpatrick. 95 AD3d 1169, 945 . YS2d 697 [2d Dept 2012 I [an affirmative defense asserting violations of General Business Law§ 349 and/or engagement in decepti\'c business practices lacks merit where, inter alia, clearl y written loan documents describe the terms of the loan]; la Salle Bank N.A . v Ko.rnroviclt, 3 1 AD3d 904, 820 NYS2d 144 lJd Dept 20061 [an alleged violation of Tl!./\ docs not constitute an affirmative defense to a defendant 's default in paymentJ ; CFSC Capital Corp. XXVII v Bacltman Meclt. Slteet Metal Co., 247 AD2d 502, 669 NYS2d 329 [2d Dept 19981 fan affirmative defense based upon the notion of cul pablc conduct is unavailable in a foreclosure action l; Conn ecticut Natl. Bank v Peach Lake Plaza, 204 AD2d 909, 612 YS2d 494 [3d Dept 1994] ldcfcnse based upon the doctrine of unclean hand s lacks merit where a defendant fails to come forward with admissible evidence or showing inunoral or unconscionable behavior]). fu rthennore. a borTowcr may not properly claim to have reasonably relied on a lender's representations that arc plainly at odds with the loan documents governing the terms of the loan (A urom Loan Servs., lLC v En aw. 126 ADJ d 830, 831 , 7 NYS3d 146 [2d Dept 2015 J). and "a party who signs a document without any valid excuse for having fa iled to read it is ·conclusively bound ' by its terms" (Patterson v Somerset lnvs. Corp. , 96 AD3d 817, 817, 946 NYS2d 2 17 [2d Dept 20 12]). The plaintiff also demonstrated that the terms of the subject mortgage loan were fully set fort h in the loan documents, and that no deceptive act or practice occurred in this case (see. Disa Real~~" Tn c. v Rao, 137 /\D3d 740. 25 NYS3d 677 [2d Dept 2016 I: Sltovak v Long ls. Commercial Bank . 50 /\03d 1118. 858 NYS2d 660 (2d Dept 20081). Because the plaintiff duly demonstrated its enti tlement to judgment as a matter o rlaw, the burden of proof shi tkd to Bono (see . HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 f3d Dept 2007]). Accordingly, it \Hts incumbent upon Bono to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triabl e issue of foct as to a bona fide defense to the action (see, Baron A .\'Soc., LLC v Garcia Group Enters., fttc. , 96 AD3d 793 , 946 NYS2d 611 [2d Dept 20 12]; Wasltington Mui. Bank v Valencia , 92 AD3d 774, 939 J YS2d 73 [2d Dept 2012J). h was thus incumbent upon Bono to submit proof' sufficient to rai se a genuine question of fact rebutting plaintil'rs prima facic showing or in support of the affirmative defenses asserted in the answer (see, Grogg v South Rd. Assoc., LP, 74 /\D3d 1021, 907 NYS2d 22 j2d Dept 2010J; Wasllington Mui. Bank, F.A. v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]: JP Morgan Chase Ban k, N.A. v Ag11ello, 62 AD3cl 062. 878 l\'YS2u 397 12d OL:pt 2009]). fn instances wht:rc a defendant fa ils to oppose a motion for summary judgml:nl. tht: facts. us alleged in the moving papers, may be deemed adm itted and there is. in effect, a concession [* 6] All four dba Albarano Holding Co. v Bono. el. al. Index ;"\lo.: 041887/2010 Pg.6 that no question or fact exists (see, Kuehne & N agel v Bait/en, 36 NY2d 539, 369 NYS2d 667 [ l 9751; see also; Argent Mtge. Co., LL C v Mentesana. 79 /\D3d 1079, 915 NYS2d 591 r2d Dept 2010]). Additionally, "uncontradictcd facts are deemed admiltcd"' ( Tortorel/o v Carlin, 260 AD2d 20 1, 206. 688 NYS2d 64 [ 1" Dept 19991 l internal quotation marks and ci1ations omitted I). In opposition to the motion. Bono has offered no proof or argumcnls in support of any of the pleaded defenses asserted in the answer, except fraud. The fai lure by Bono to raise and/or assert each of the remaining pleaded defenses in opposition to the plaintiffs motion wnrrants the dismissal of' same as abandoned under the case authorities ci ted above (see. Kuehne & Nagel v Baide11 , 36 NY2d 539, supra; see also;Argeltf Mtge. Co., LLC v M entesana, 79 AD3d 1079. supra) . All of the unsupported affirmative dercnses asserted in the answer are thus dismissed. :'\otabl). Bono did not deny ha,·ing received the Joan proceeds and having defaulted on the subject loan paymen ts in an affidavit made by him in opposition to the motion (see, Citibank, N.A. v Souto Geffen Co., 23 I AD2d 466. 647 NYS2d 467 [ 1'' Dept 1996J; see also, Stem v S tern , 87 /\02d 887, 449 NYS2d 534 [2d Dept 19821). Thus, even when considered in the light most favorable to Bono, the opposing papers are insufficient to raise any genuine question or fact requiring a trial on the merits of the plaintiffs claims for foreclosure and sale (see, E migrant Mtge. Co., Inc. v Beckerman, 105 /\D3d 895, 964 NYS2d 548 f2d Dept 20 13)). Bono' s oppos ition papers arc also insufficient to demonstrate any bona fide defenses (see, CPLR 3211 [e ]; Tr;/J eca lending Corp. v Lllwson , 159 AD3d 936, 73 NYS3d 575 l2d Dept 2018); HSBC B"11k USA, N.A. v Ozcan, 154 AD3d 822, 64 NYS3d 38 [2017); U.S. Bank N. A. v Richard, I 51 A D3d 1001 , 57 NYS3d 509, 511 [2d Dept 2017 J; HSBC Bank, USA v llagerman , 130 AD3d 683, 11 NYS3d 865 [2d Dept 201S] [bald assertion of forgery is insufficient to raise a triable issue of fact]; Rimbambito, LLC v Lee, 118 AD3d 690, 9861\YS2d 855 [2d Dept 2014 I: Am erican A irlines Fed. Credit Union v ftfoltamed, 117 AD3d 974. 986 NYS2d 530 [2d Dept 2014]; Coch ran In v. Co., Inc. v J"ckson , 38 AD3d 704, 834 t\YS2d 198 [2d Dept 20071). The court has examined 13ono 's remaining contentions and finds that such lack mt:rit. The plaintiff is therefore awarded summary judgment in its favor against 13crno (see , Federal Home Loan Mtge. Corp. v Karnstathis. 237 AD2d 558, supra: see also. Emigrant Bank v Myers. 147 /\D3d 1027. 47 NYS3d 446 [2d Dept 2017) l unmeritorious and duplicative affirmative defenses and counterclaims dismissedl). The answer is stricken, and the affirmath·e defenses asserted therein are dismissed, all with prejudice. The court next turns to the ancillary relief' in the plaintiff's motion. The branch of the motion for an order amending the caption, by excising the fictitious "John Doc" and .. June Doe" de!Cn<lants, is gran ted (see.·CPLR 102 4: Deutsche Bank Natl. Trust Co. v Islar. 122 AD3d 566, 996 YS 2d 130 [2d Dept 20 14 I Neighborlt ood Ho us. Seri's. of N. Y. City, Inc. v Meltur . 67 AD3d 872, 889 1YS2d 627 !2d Dept 2009.1). By its submissions, the plaintiff established the basis for the above-noted relief. All future proceedings shall be captioned accordingly. l3y its moving papers, the plaintiff established the default in answering on the part of the remaining delendants. Geoffrey YI. Parkinson and Laura J. Niles Foundation Inc. c/o Michael G. Langan. Public Administrator of Suffolk County, and Astoria Federal Savings and Loan Association (see, RP APL§ 1321 ; HSBC Bank USA, N.A. vA lexa11der, 124 /\DJd 838, 4 NYSJd 47 [2d Dept 20151: Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 993 NYS2d 322 (2d Dept 20141). /\ceordingly, the default in answering of all of the nonanswering defendants is fixed and determi ned. [* 7] /\II four dba /\lbnrano I loldin g Co. v Bono, et. al. Index No.: 0-tl887/2010 Pg. 7 Because the plaintiff has been a\rnrJed summary judgment against Bono and has established the default in answering by tht.: remaining ddcndants, the plaimiff is 1.:ntitlcd tu an order appointing a re!Crcc to compute amounts due under th~ subject note and mortgage (st'e. RP /\PL§ 1321: Green Tree Servicing, lLC 11 Cary, I 06 AD3d 691. 965 NYS2d 51 1 l'.2<l Dept 20 13]; Ocwe11 Fed. Bank F:.<.;B vMiller. 18 J\D3d 527. 794 NYS2d 650 j:.!d Dept 2005 j). Those portions ot'the instmlt motion wherein the plaintiff demands such rdiefare thus granted. According!). the plaintifrs motion for summary judgment is gran1cd. The plaintiff is directed to settle. on not less than twenty (20) dn) s notice to all appearing counsel. a proposed order of reference providing in blank for the court's designation of a referee to compute and such other matters necessarily attendant wi1h such appointment and order or reference. The proposed order of reference must be accompanied by copy of' this order. FI NAL DISPOSIT I ON _ L NON-FINAL DISPOSITI ON

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