Federal Natl. Mtge. Assn. v Ersoy

[*1] Federal Natl. Mtge. Assn. v Ersoy 2018 NY Slip Op 51407(U) Decided on October 4, 2018 Supreme Court, Suffolk County Quinlan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 4, 2018
Supreme Court, Suffolk County

Federal National Mortgage Association, Plaintiff,

against

Yahya Ersoy; JPMorgan Chase Bank, N.A.; Discover Bank; "John Doe # 1-5 and "Jane Does # 1-5", said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants.



613212-2015



FEIN SUCH & CRANE, LLP

Attorneys for Plainitff

1400 Old Country Rd., Suite C103

Westbury, NY 11590

MARTIN SILVER, PC

Attorney for Defendant Ersoy

330 Motor Parkway, Suite 201

Hauppauge, NY 11788
Robert F. Quinlan, J.

Upon the following papers numbered read on this motion for an order granting summary judgment, amending the caption and order of reference; Notice of Motion and supporting papers (NYSCEF Doc #27-36); Answering Affidavit and supporting papers (Doc #37-40); Replying Affidavit and supporting papers (Doc #41-42); it is,

ORDERED that this motion by plaintiff for an order dismissing and striking the answer of defendant Yahya Ersoy granting it summary judgment, amending the caption, granting default [*2]judgment against the non-appearing and non-answering defendants, and appointing a referee to compute, is granted in part and denied in part as set forth below; and it is further

ORDERED that plaintiff is granted partial summary judgment dismissing defendant Yahya Ersoy's 1st , 2nd , 4th through 10th and 14th through 17th affirmative defenses raised in his answer; and it is further

ORDERED that upon the proof submitted plaintiff's application to dismiss defendant's 3rd affirmative defense, to the extent that it alleges plaintiff's failure to provide proof of compliance with the mailing requirements of RPAPL § 1304 and the notice of default required by the mortgage, and defendant's 11th through 13th affirmative defenses, to the extent that they allege plaintiff's failure to establish its standing to bring the action, is denied as is plaintiff's application to dismiss and strike defendant's answer; and it is further

ORDERED that upon the proof submitted plaintiff's application to amend the caption to substitute Sara Aravelo, Ayse Beskardes, Sukruye Ozbay, and Deby Archaga for "JANE DOE # 1-4" and to severe and remove defendants "JOHN DOE # 1-5" and " JANE DOE # 5" from the caption and to discontinue the action against the same is granted; and it is further

ORDERED that the caption shall now appear as follows:

--------------------------------------------------X

FEDERAL NATIONAL MORTGAGE ASSOCIATION,

Plaintiff,

against

YAHYA ERSOY; JPMORGAN CHASE BANK, N.A.; DISCOVER BANK; SARA ARAVELO, AYSE BESKARDES, SUKRUYE OZBAY, DEBY ARCHAGA,

Defendants.

--------------------------------------------------X;

and it is further

ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further

ORDERED that the default of the non-appearing and non-answering defendants are fixed and set; and it is further

ORDERED that in all other respects, plaintiff's motion is denied; and it is further

ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL § 1321 is denied and its proposed order submitted with this motion is marked "Not Signed"; and it is further

ORDERED that pursuant to CPLR 3212 (g) and §2218, the action is set for trial limited to proof of plaintiff's proof of compliance with the mailing requirements of RPAPL § 1304 (defendant's third affirmative defense), and proof of plaintiff's standing to bring the action (defendant's eleventh through thirteenth affirmative defenses); and it is further

ORDERED that plaintiff is to file a note of issue within 90 days of the date of this order and is to attach a copy of this order to the note of issue as basis for the filing thereof; failure to do so will serve as a basis for dismissal pursuant to CPLR 3216, as the court is not only filing this decision, but is sending plaintiff a copy by certified mail and it is further

ORDERED that the action is scheduled for a pre-trial conference on January 9, 2019 at [*3]9:30 AM in Part 27.

This is an action to foreclose a mortgage on residential real property known as 637 Outlook Avenue, North Babylon, Suffolk County, New York ("the property"). On February 8, 2007 defendant Yahya Ersoy ("defendant") executed a mortgage to JPMorgan Chase Bank ("JPMorgan") in the sum of $304,000.00 to secure a note in that amount given on the same date by him to JPMorgan. On March 4, 2011 defendant entered into a HAMP Loan modification with JPMorgan increasing the amount owed to $332,854.97, which sum was also secured by the mortgage given on February 8, 2007. The HAMP Loan modification agreement was filed with the Suffolk County Clerk ("Clerk") on October 3, 2013. Defendant allegedly defaulted in payments due under the mortgage and loan modification with the payment due on November 1. 2011. Plaintiff Federal National Mortgage Association ("plaintiff') allegedly came into possession of the note and was assigned the mortgage by JPMorgan by an assignment of the mortgage dated October 15, 2014 and filed with the Clerk on December 9, 2014. A corrective assignment was filed with the Clerk on December 30, 2014. The court notes that neither the original assignment of the mortgage, nor the corrective assignment, assign the note along with the mortgage.

On December 18, 2015 plaintiff filed a summons, complaint and notice of pendency with the Clerk by NYSCEF, and subsequently served defendants. Defendant interposed an answer by filing it with the Clerk by NYSCEF on March 4, 2016 consisting of general denials and seventeen affirmative defenses.

The court's computer records show that a conference was held in the court's dedicated Foreclosure Settlement Conference Part May 23, 2016 and the action was released to an IAS Part as it was determined that the property was not subject to the requirements of CPLR 3408 as it was not defendant's primary residence. Plaintiff then filed the present motion, originally returnable on January 12, 2017 before the Hon. Denise F. Molia, Acting Justice of the Supreme Court, but by letter March 27, 2018 plaintiff asked Acting Justice Molia to delay a decision on the motion as defendant has made an application for a further loan modification and plaintiff feared violating federal regulations in regards thereto.

By AO # 20-18 District Administrative Judge C. Randall Hinrichs transferred this action, along with others, to this dedicated foreclosure part, and by order dated April 9, 2018 this court set the motion for oral argument on June 18, 2018. Unfortunately, this court was designated to preside over a jury trial of a personal injury action just before the scheduled oral argument date, necessitating adjourning the oral argument. Rather than rescheduling the oral argument, the case was marked off the oral argument calendar for a written decision.

In support of its motion plaintiff submits attorney affirmations, an affidavit from an employee of plaintiff's servicer, Seterus Inc. ("Seterus"), and attached exhibits. In opposition, defendant submits an affirmation of his counsel and attached exhibits. In reply, plaintiff submits an affirmation of counsel and attached exhibits.

UNSUPPORTED AFFIRMATIVE DEFENSES DISMISSED

Defendant's counsel's affirmation and submissions only address issues involving plaintiff's standing to bring the action (defendant's 11th through 13th affirmative defenses), and as explained below, as plaintiff had pled compliance with the requirements of RPAPL § 1304 in the 9th paragraph of the complaint, which was denied by defendant's answer, and as a broad reading [*4]of his 3rd affirmative defense also raises that compliance and compliance with the notice of default required by the mortgage, plaintiff is required to establish with both as part of its prima facie case for summary judgment. But defendant's 1st, 2nd, 4th through 10th and 14th through 17th affirmative defenses are not supported or argued in opposition to plaintiff's motion and are dismissed . The failure to raise and support pleaded affirmative defenses in opposition to a motion for summary judgment renders them abandoned and subject to dismissal (see Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975]; Kronick v L. P. Therault Co., Inc., 70 AD3d 648 [2d Dept 2010]; New York Commercial Bank v. J. Realty F. Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v. City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]).

SUMMARY JUDGMENT

Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage, the unpaid note, and evidence of default in payment (see Wells Fargo, NA v Erobobo, 127 AD3d 1176 [2d Dept 2015]; Wells Fargo Bank, NA v Morgan, 139 AD3d 1046 [2d Dept 2016]). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment (CPLR 3212; RPAPL § 1321; see Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2d Dept 1997]). The burden then shifts to defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense (see Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept 2010], Zanfini v Chandler, 79 AD3d 1031 [2d Dept 2010]; Citibank, NA v Van Brunt Properties, LCC, 95 AD3d 1158 [2d Dept 2012]). Defendant must then produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Defendant's answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]). In deciding the motion the court is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v Restani Corp., 18 NY3d 499 [2012]).

PLAINTIFF MUST ESTABLISH STANDING

Where plaintiff's standing has been placed in issue, as here, by defendant's answer, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 [2015]; US Bank, N. A. v Cohen, 156 AD3d 844 [2d Dept 2017]; HSBC Bank, U.S.A. v Oscar, 161 AD3d 1055 [2d Dept 2018]; Wells Fargo Bank, N.A. v Inigo, 164 AD3d 545 [2d Dept 2018]). Plaintiff establishes its standing by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, supra). A written assignment or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident thereto (see U.S. Bank, NA v Collymore, 68 AD3d 752 [2d Dept 2009]; Bank of NY Mellon v Gales, 116 AD3d 723 [2d Dept 2014]).

COMPLIANCE WITH THE DEFAULT NOTICE OF MORTGAGE AND RPAPL § 1304 MUST BE ESTABLISHED

Similarly, where defendant has properly asserted non-compliance with the notice requirements of RPAPL §1304 as a defense, or raised it in opposition to plaintiff's motion, or [*5]when plaintiff has pled it in the complaint and defendant has denied the allegation, plaintiff must adduce due proof that the pre-action foreclosure 90 day notice requirements have been satisfied (see PHH Mtge. Corp. v. Celestin, 130 AD3d 703 [2d Dept 2015]; Cenlar v Weisz, 136 AD3d 855 [2d Dept 2016]; Zarabi v. Movahedian, 136 AD3d 895 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, 142 AD3 536 [2d Dept 2016]; Aurora Loan Svcs, LLC v Baritz, 144 AD3d 618 [2d Dept 2016]). Also, where defendant has properly asserted non-compliance with the condition precedent in the mortgage as a defense, plaintiff must adduce due proof that this requirement has been satisfied (see U.S. Bank, N.A. v Singh, 147 AD3d 1007 [2d Dept 2017]). The court notes that defendant's 3rd affirmative defense is overly broad and non-specific, stating merely: "That plaintiff has failed to give proper notice to the defendant YAHYA ERSOY as required by the documents referred to in the complaint which notice is a condition precedent to the bringing of this lawsuit." If plaintiff had moved to strike it, or had argued that in failing to meet the requirements of the following two CPLR sections, it was inoperable, the court might have agreed. CPLR 3015 (a) requires that denial of performance or occurrence must be made specifically and with particularization in a responsive pleading. CPLR 3013 requires that a defense be raised with particularity as to give notice of the elements of each defense. Defendant's 3rd affirmative defense fails to meet either of these criteria, and in fact refers to only notice in the singular. The only "notice" "referred to in the complaint," as mentioned in defendant's third affirmative defense, were the notices required by RPAPL § 1304 ( 9th paragraph of the complaint). There was no mention of the notice of default required by the mortgage. As defendant had denied the allegations of the 9th paragraph of the complaint, plaintiff was required to establish compliance with RPAPL § 1304 pursuant to the holdings cited above. Although the court believes that defendant's 3rd affirmative was insufficient to require plaintiff to prove compliance with the conditions set forth in paragraphs 15, 18 and 22 of the mortgage, plaintiff disagrees. In paragraph 17 of plaintiff's counsel's affirmation and in paragraph 7 of the affidavit of the employee Seterus, plaintiff agues that it complied with the default notice required by the mortgage. As plaintiff concedes it must so comply, the court will address it's failure to establish compliance.

Additionally, although near the end of paragraph 14 of his affirmation, plaintiff's counsel argues that compliance with RPAPL § 1304 was not necessary as the loan was not a " home loan" as defined by RPAPL § 1304 (5), there is no proof provided to support this conclusion. If it is demonstrated that a loan was not a "home loan" within the meaning of RPAPL § 1304, that defendant did not occupy or intend to occupy the subject property, plaintiff is not required to provide compliance with the notice provisions of that statute (see Mendel Group, Inc. v Prince, 114 AD3d 732 [2d Dept 2014]; HSBC, USA v Ozcan, 154 AD3d 822 [2d Sept 2017]; HSBC Bank, USA v Oscar, 161 AD3d 1055 [2d Dept 2018]). Plaintiff has failed to meet that burden here.

Counsel seems to reach his conclusion because service was made upon defendant at an address other than the property and because others were living at the property at the time of service. RPAPL § 1304 (5) (iii) in effect at the time the action was commenced requires that the loan be secured by a mortgage on property "which is or will be occupied by the borrower as the borrower's principal dwelling..." Paragraph 6 of the mortgage signed by defendant represents that he will occupy the premises as his principal residence within 60 days of the signing; [*6]paragraph 1. B. of the HAMP agreement executed by defendant states that the property is his principal residence. Therefore, the only evidence before the court is presented by plaintiff and shows that defendant represented that the property was his primary residence at least through the time of the HAMP agreement. The requirement of RPAPL § 1304 (5) is merely that at the time of entering into the mortgage the property was, or was intended to be, the principal dwelling of defendant. As plaintiff plead compliance with RPAPL § 1304 in the complaint and that plaintiff's own evidence shows that the property was, or was intended to be, plaintiff's primary residence, plaintiff must establish compliance with the notice requirements of RPAPL § 1304 as pled in its complaint. Plaintiff also appears to acknowledge this burden by arguing in its attorney's affirmation and the affidavit of the employee of Seterus that it complied with RPAPL § 1304.

PLAINTIFF FAILS TO ESTABLISH STANDING

Plaintiff has standing if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v Larizza, 129 AD3d 904 [2d Dept 2015]; M & T Bank v Cliffside Prop. Mgt., LLC, 137 AD3d 876 [2d Dept 2016]). Here plaintiff attempts to establish its standing in three ways: through the affidavit of the employee of plaintiff's servicer, by attaching a copy of the note and an allonge indorsed in blank to the complaint, and through assignments of the mortgage. All three attempts fail.

The affidavit of the employee of Seterus establishes her ability to testify to the business records of Seterus pursuant to CPLR 4518 (a). As the power of attorney from plaintiff to Seterus dated October 12, 2011 establishes Seterus' authority to manage the loan for plaintiff as of that date, her review of Seterus' records establishes the default of defendant in payments required under the note and mortgage with the payment due November 1, 2011. But her affidavit fails to establish her ability to testify to plaintiff''s business records pursuant to CPLR 4518 (a) or that she even reviewed those records. She fails to establish in admissible form evidence that plaintiff "acquired the original Note on March 23, 2015." or that Seterus held the note at that time on behalf of plaintiff. An affidavit of plaintiff's servicer's employee which fails to establish the affiant's personal knowledge of business record keeping practices and procedures of plaintiff is inadmissable and as such fails to provide proof establishing plaintiff's possession of the note prior to commencement of the action and therefore its standing (CPLR 4518; see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650 [2d Dept 2016]; Aurora Loan Servs., LLC v Bartiz, 144 AD3d 618 [2d Dept 2016]; Aurora Loan Servs v. Komarovsky, 151 AD3d 924 [2d Dept 2017]; Bank of New York Mellon v Lopes, 158 AD3d 662 [2d Dept 2018]; One West Bank, FSB vv Berino, 158 AD3d 811 [2d Dept 2018]). This affidavit fails to establish plaintiff's standing.

Plaintiff can demonstrate its standing as holder of the note prior to the commencement of the action by attaching a copy of the indorsed note to the complaint at the time the action was commenced, (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Deutsche Bank Natl. Trust v Leigh, 137 AD3d 841 [2d Dept 2016]; Deutsche Bank Natl Trust Co. v Carlin, 152 AD3d 491[2d Dept 2017]; Nationstar Mtge, LLC v LaPorte, 162 AD3d 784 [2d Dept 2018]; Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d 522 [2d Dept 2018]). In this case plaintiff attempted to meet this standard by attaching a copy of the note and an allonge, which contained on it an indorsement from JPMorgan to Chase Home Finance, LLC ("Chase") as well as a second indorsement in blank from Chase. This would have been sufficient to [*7]establish plaintiff's standing if there had been proof provided either on that allonge, or through the affidavit of the employee of Seterus, or an affidavit or affirmation of someone else with personal knowledge, that the allonge was attached to the note. That was not done. Failure to provide proof that the allonge was firmly affixed to the original note as to be part thereof makes the endorsement invalid and fails to provide the necessary proof of standing through attachment of the note to the complaint (UCC 3-202 [2]; see Slutsky v Blooming Grove Inn, 147 AD2d 208 [2d Dept 1989]; HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983 [2d Dept 2015]).

A plaintiff can establish its standing through assignments of the mortgage which includes language also assigning note (see Emigrant Bank v Larizza, 129 AD3d 904 [2d Dept 2015]; U. S. Bank N.A. v Akande, 136 AD3d 887 [2d Dept 2016]; Wells Fargo Bank. N. A. v Archibald, 150 AD3d 937 [2d Dept 2017]). Although the original mortgage and the subsequent assignments do not involve issues commonly raised by an assignment through Mortgage Electronic Registration Systems in the chain (see Bank of New York v Silverberg, 86 AD3d 274 [2d Dept 2011]; Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2d Dept 2007]; Aurora Loan Servs., LLC v Baritz, 144 AD3d 618 [2d Dept 2016]), none of the assignments mention assigning the note along with mortgage.

Plaintiff has failed to establish its standing on this proof and defendant's 3rd affirmative defense cannot be dismissed.

MAILINGS REQUIRED BY MORTGAGE AND RPAPL §1304 NOT ESTABLISHED

Due proof of the mailing of the notices required by the mortgage and RPAPL § 1304 is established by submission of an affidavit of service (see JPMorgan Chase Bank, N.A. v Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946 [2d Dept 2015]) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2d Dept 2006]); Citimortgage v Banks, 155 AD3d 936 [2d Dept 2017]). Unsubstantiated and conclusory statements in the affidavit of plaintiff's servicer's representative, along with dated copies of the notice, are insufficient to prove that the notices required by RPAPL § 1304, or the mortgage, were properly mailed (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]).

Here, although the affidavit of the employee of Seterus establishes her ability to testify to Seterus' business records pursuant to CPLR 4518, the affiant fails to establish mailing of the notices required by RPAPL § 1304, as well as those required by the terms of the mortgage.

Although the RPAPL § 1304 notices appear to be adequate in size and content and purports to contain the necessary number of regional housing counseling agencies, the proof of mailing is clearly insufficient. The affiant merely states that a review of the records establishes the RPAPL § 1304 notices were sent to defendants dated April 16, 2015. There is not even a statement that they were mailed by both regular and certified mail. Her statements are unsubstantiated, conclusory and insufficient to establish the mailing (see JPMorgan Chase Bank, [*8]N.A. v Kutch, 142 AD3d 536 [2d Dept 2016]; Cenlar FSB v Censor, 139 AD3d 781 [2d Dept 2016]; US Bank, NA v Henderson, 163 AD3d 601[ 2d Dept 2018]). The affidavit fails to show a familiarity with Seterus's standard office practice and procedures to ensure proper addressing and mailing (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; US Bank v Henry, 157 AD3d 839 [2d Dept 2018]; Bank of NY Mellon v Zavolunov, 157 AD3d 754 [2d Dept 2018]; US Bank, NA v Henderson, 163 AD3d 601[ 2d Dept 2018]). This fails to establish the mailing of the RPAPL § 1304 notices.

Although the same infirmity in the affidavit exists as to proof of mailing of the notice of default required by the mortgage as it does for the RPAPL § 1304 notices, there is a further problem. The default notice appears to be sent by Chase, not Seterus. As the affiant fails to establish her ability to testify at to the business practices and procedures of Chase so as to be able to provide evidence pursuant to CPLR 4518 (a), her testimony as to that mailing is inadmissible for this reason alone (see Aurora Loan Servs., LLC v Mercius, supra; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, supra; Citimortgage, Inc. v Pappas, supra; Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491 [2d Dept 2017]; M & T Bank v Joseph, 152 AD3d 579 [2d Dept 2017]).

Having failed to establish the mailing of the notice of default required by the mortgage and the notices required by RPAPL § 1304, plaintiff has not established its prima facie burden of proof entitling it to summary judgment in this foreclosure action, and to the dismissal of defendant's 3rd affirmative defense. Plaintiffs motion for summary judgment is denied, except to the extent set forth above. Plaintiff's application for the appointment of a referee pursuant to RPAPL § 1321 is denied, subject to renewal. Plaintiff's proposed order is marked "Not Signed."ANCILLARY RELIEF GRANTED

Plaintiff's application to amend the caption to substitute Sara Aravelo, Ayse Beskardes, Sukruye Ozbay, and Deby Archaga for "JANE DOE # 1-4" and to severe and remove defendants "JOHN DOE # 1-5" and " JANE DOE # 5" from the caption and to discontinue the action against removed defendants is granted upon proof submitted (see US Bank, N.A. v Boyce, 93 AD3d 782 [2d Dept 2012]; Citimortgage, Inc v Chow Ming Tung, 126 AD3d 841 [2d Dept 2015]).

The default of the non-appearing, non-answering defendants are fixed and set (see U.S. Bank N.A. v Wolherman, 135 AD3d 850 [2d Dept 2016]; HSBC USA, N.A. v Alexander, 124 AD3d 838 [2d Dept 2015]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2d Dept 2014]).

LIMITED ISSUE TRIAL

Pursuant to CPLR 3212 (g) the court finds the only remaining issues of fact are whether plaintiff has proven its standing to prosecute the foreclosure action and whether or not the plaintiff complied with the mailing requirements relevant to the notices of default required by the note/mortgage and RPAPL § 1304. The court sets the action down for trial, pursuant to CPLR § 2218, which shall be limited to the proof of those issues.

NOTE OF ISSUE TO BE FILED

As there is no need for discovery, plaintiff is directed to file a note of issue within 90 days of the date of this order and is to attach a copy of this order to the note of issue as basis for so filing. Failure to do so will serve as a basis for dismissal pursuant to CPLR 3216, as the court is not only filing this decision, but is sending plaintiff a copy by certified mail.

A pre-trial conference is set for January 9, 2019 at 9:30 AM in Part 27, at which time a trial date will be set.

SUBSEQUENT MOTION FOR SUMMARY JUDGMENT AUTHORIZED

Though successive summary judgment motions are generally not entertained, in the interests of judicial economy, the court authorizes plaintiff to file a subsequent motion for summary judgment upon the filing of the note of issue, solely on the above limited issues. This is done as the deficiencies in plaintiff's proof of standing and proof of mailing of the notices required by the mortgage and RPAPL § 1304 appear to be simple defects, and that by allowing the filing of a second summary judgment motion the court hopes to eliminate the burden on judicial resources that would otherwise require a trial (see Rose v Horton Med. Ctr., 29 AD3d 977 [2d Dept 2006]; Landmark Capital Investments, Inc. v Li-Shan Wang, 94 AD3d 418 [1st Dept 2012]). Although multiple summary judgment motions are discouraged without a showing of newly discovered evidence, or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v McDonald's Restaurants of New York, Inc, 198 AD2d 208 [2d Dept 1993]; Valley National Bank v INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]; American Equity Insurance Co. v A & B Roofing, Inc., 106 AD3d 762 [2d Dept 2013]; Kolel Damsek Eliezer, Inc. v Schlesinger, 139 AD3d 810 [2d Dept 2016]). The denial of a subsequent dispositive summary judgment motion for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017]).

Therefore, under these particular circumstances, plaintiff is given the opportunity to file a subsequent motion for summary judgment on the limited issues set for trial within 90 days of the filing of the note of issue.

Failure to do so will be deemed a waiver of this opportunity by plaintiff, and the action will proceed to a limited issue trial on the issues left before this court.

No further motions will be entertained without permission of the court, which may be obtained by letter.

This constitutes the Order and decision of the Court.

Dated: October 4, 2018

Hon. Robert F. Quinlan, J.S.C.