21st Mtge. Corp. v Broderick

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21st Mtge. Corp. v Broderick 2019 NY Slip Op 32230(U) July 30, 2019 Supreme Court, Suffolk County Docket Number: 19497/2013 Judge: Howard H. Heckman 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] Sho :~ Form OrJ~r SUPREME COURT - STATE OF NEW YORK !AS PART 18 - Sl.iFFOLK COUNTY PRESE N T: HON. HOWARD H. HECKMAN JR. , J.S.C. ----------------------------------------------------------------)( 21 sr MORTGAGE CORPORATION. Plaintiff. INDEX NO.: 19497/2013 MOTION DATE: 4/9/20 19 MOTION SEQ. NO.: #008 MG PLAINTIFF'S ATTORNEY: BRADSHAW LAW GROU P, P.C. 32 I BROADWAY. STI l FLR NEW YORK NY 10007 -against- NICOLE BRODERICK. ct al., Defendants. DEFENDANT'S ATTORNEY: JEFFREY HERZB ERG, ESQ. 300 RABRO DRIVE, STE 11 4 IIAUPPAUGE, NY I 1'788 ----------------------------------------------------------------)( Upon the fol lowing papers numbered I lo 22 rt:ad on tliis motion 1- 13 : Notice of Motion/ Order to Show Caus..: and supporting papers_ : Notice of Cross Motion and supporting papers _ : Ans\\ ering Atlidavits and supporting papers I -1-20 : Replying Affidavits and supporting papers 21 -22 : Other_ : (and after hearing counsel in support and opposed to the motion ) ii is. ORDERED that this motion by plaintiff 2151 Mortgage Corporation seeking an order: 1) granting summary judgment striking the answer asserted by defendant Nicole Broderick: 2) deeming all appearing and non-appearing defend ants in default; 3) amending the caption; and 4) appointing a referee to compute the sums due and owing to the plaintiff in this mortgage foreclosure action is granted: and it is further ORDERED that plaintiff is directed ~o serve a copy of this order amending the caption upon the Calendar Clerk of the Court: and it is further O RDERED that plaintiff is directed to serve a copy of this order with notice of entry upon all parties who have appeared and not waived further notice pursuant to CPLR 2 1OJ(b)( I )(2) or (3 ) within thirty days of the date of this order and to promptly file the affidavits of service w ith the Clerk of the Court. Plaintiff's action seeks to foreclose a mortgage in the original sum of $272.000.00 executed by defondant Nicole Broderick and Debra Ann Broderick on April 25. 2007 in favor of Wells Fargo 13ank. N./\. On the same date mortgagor Nicole Broderick executed a promissory note promising to re-pay the ent ire amou nt or the indebtedness to the mortgage lender. The mortgagors defaulted in making timely monthly mortgage payments due pursuant to the terms or the loan beginning June l. ~009 and continuing to date. Wells Fargo Bank. N.A. commenced this action by filing a summons. complaint and notice of pendency in the Surfolk County Clerk's Office on July 24, 2013. Defendant/mortgagor Broderick served an answer dated Septcm bcr 7, 2013 asserting eight (8) affirmati,·e <le!enses. By Order (Fameti. J.) dated December I. 2015 plaintiffs unopposed motion seeking an order granting summary judgment and for the appointment of a referee to compute the sums due und owing to the mortgage lender was granted. By assignment dated Apri I 13. 2016 the mortgage loan was assigned from \Velis Fargo Bank. N.A. to 21 " Mortgage Corporation. By short fo rm Order dated April 18. 2018 dcfendant·s application seeking to vacate Acting Justice Farncti's [* 2] December 1. 20 15 Order based upon plaintiffs counsel's failure to serve the original summary judgment motion to defense counsel's new law office address was granted. Plaintiff was granted permission to renew its summary judgment motion. Court records indicate that plaintiff subsequent ly submitted two additional motions; the first seeking an order of reference granting summary judgment and the second seeking a judgment of foreclosure and sale. Both motions were granted without opposition by Orders dated June 12, 2018 and by Judgment of foreclosure and Sale dated September 6. 2018. Defendant subsequently subm itted an Order to Show Cause dated October 3. 2018 seeking to vacate both prior orders/judgment claiming that although de fondant served timely opposition papers to plaintiffs summary judgment motion, those papers were never considered by the court prior to granting plaintiffs unopposed motion for the order ofreference. All three appl ications were thereafter resolved by a so-Ordered stipulation signed by counsel representing the parties dated October 24, 2018. The so-Ordered stipulation vacated the June 12, 2018 Order granting summ ary judgment and the Judgment of Foreclosure and Sale dated September 6, 20 18. Deft!n<lant agreed to withdraw the Order to Show Cause signed on October 3, 2018 and both parties stipulated to substitute 2151 Mortgage Corporation as the named party plaintiff in place and stead of Wells Fargo Banlc N.A. (In paragraph three (3) of defense counsel's affi rmation in opposition, counsel claims that neither Well s Fargo nor 21 51 Mortgage Corporation have moved to amend the caption- this contention is clearly without merit since defense counsel agreed in writing to such substitution in the October 24, 2018 so-Ordered stipulation). Plaintiff's current motion seeks an order granting summary judgment striking defendant's answer and for the appointment of a referee. Defendant's opposition claims that plaintiffs motion must be denied based upon plaintiffs failure to submit sufficient evidence to prove that it has standing to maintain this foreclosure action and to prove that it complied with RP APL 1304 service requ irements . Defendant also claims that the true owner of the mortgage loan has not been identified and may not have capacity to maintain this action in New York and therefo re di scovery must be conducted. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering suffic ient evidence to eliminate any material 4ucstio11 of fact from the case. The grant of ::>ummary j u<lgment is uppropriate only when it is clc::ir that no material and triable issues of fact have been presented (Sillman v. Tlrentieth Centw:v-Fox Fi/111 Corp.. 3 NY2d 395 (1957)). The moving party bears the initial burden of proving entitlement to sum mary judgment ( Winegmcl '" NYU Medical Center, 64 NY2d 85 1 ( 1985)). Once such proof" has been proffered, th e burden sh ins to the oppos ing party who. to defea t the motion, must offer e' idcnce in admissible form. and must set forth facts sufficient to require a trial of any issue of fact ( CPLR 3212( b ): Luckerman '" City <?(1\'e1r fork. 49 Y2d 557 ( 1980) ). Summary judgment shall only be granted when there arc no issues of material fact and the evidence requires the court to direct a judgment in favor or the movant as a matter of law (Fr iends of1lni111als ''·Associated Fur Mll111(/ll<.'IUrers. -t-6 NY:?.d 1065 ( 1979)). Entitlement to summary judgment in favor of tht! foreclosing plaintiff is established. prima facic by the plaintiff's producti on of the mortgage and the unpaid note, and evidence of default in payment (see Wells Fargo Bank NA . v. Erohohu. 127 J\DJd 1176. 9 NYS3d 312 (2 110 Dept..2015 ): Wells Fargo Bank. .\'., J. , .. Ali. 122 AD3d 726. 995 NYS2d 735 (2°J Dept.. 2014)). Where the -2- [* 3] plaintiffs standing is placed in issue by the defendant's ans\\'er. the plaintiff must also establish its standing as part of its prima facie shovving (A urorn Loan Serrices '" Taylor, 25 1Y3d 355. 12 NYS3d 612 (20 15): Loancare '" Firshing. 130 AD3d 787. 14 NYS3d 410 (2"d Dept., 2015): HSBC Bank USA. XA. '"Baptiste. 128 AD3d 77. 10. YS3d 255 (2"d Dept.. 2015)). In a foreclosure action. a plaintiff has sta nding if it is either the holder of, or the assignee of: the underlying note at the time that the acti on is commenced (Aurora Loan Senices '" Taylor. supra.. Emigrant Bank 1•. Lari==a, 129 AD3d 9-t 13 NYS3d 129 (2nJ Dept.. 2015 )). Either a written assignment of the note or the physical transfer of the note to the plaintiff prior to commencement of the action is sufficient to transfer the obligation and to provide standing (Wells Fargo Bank. N.A. 1·. Parker. 125 AD3d 848, 5 NYS3d 130 ('.?"J Dept., 201 5): US Bank'" Guy. 125 AD3d 845. 5 NYS3d 116 (2"d Dept..1015)). A plaintiffs attachment of a dul y indorsed note to its complaint or to the certificate of merit required pursuant to CPLR 3012-b has been held to constitute due proof of the plaintiff's possession of the note prior to the commencement of the action and thus its standing to prosecute its claim for fo reclosure and sale (Bank of Nell' }·ark Me l Ion v. The obahl.Y. 161 AD3d 113 7, 79 NYS 3d 50 (2"d Dept.. 20 18); Bank of Ne 11· J·ork lvfellon ' '· Burke. 155 AD3d 932, 64 NYS3d 114 (2"<l Dept., 20 17): Wells Fargo Bank. NA. v. Thomas. 150 AD3d 13 I 2, 52 NYS3d 894 (2nd Dept., 2017); Deutsche Bank National Trust Co. v. Garrison, 147 AD3d 725, 726, 46 NYS3d 185 (2"d Dept., 20 17); U S Bank , NA. v. Sara1 anan. 146 AD3d 1010. 1011 , 45 NYS3d 547 (211d Dept., 20I7) ; JPMorgan Chase Bank. NA. v. We inberger. 142 AD3d 643, 37 NYS3d 286 (2nd Dept.. 2016); FNMA v. Yakaplllz II, Inc., 141 AD3d 506, 35 NYS3d 236 (2"d Dept., 2016); Deutsche Bank National Trust Co. v. Leigh, 137 AD3d 841 , 28 NYS3d 86 (2"d Dept., 2016); Nationstar 1\lfortgage LLCv. Catizone, 127 AD3d 11 51, 9 NYS3d 315 (2"d Dept.. 2015)). 1 At issue is whether the evidence submitted by the plaintiff is sufficient to establish its right to foreclose. The defendant does not contest her failure to make timely payments due under the terms of the promissory note and mortgage agreement in more than a decade. Rather, the issues raised by the defendant concern whether the proof submitted by the mortgage lender provides sufficient admissible evidence to prove its entitlement to summary judgment based upon the mortgagor's continuing default, plaintiff's compliance with RP APL 1304 notice requirements. plaintifrs standing and capacity to maintain this action and defendant's right to conduct discovery prior to judgment. C PLR 4518 provides: Business records. (a) Generally. Any wTiting or record. \vhcthcr in the fo rm of an entry in a book or otherwise, made as a memorandum or record of any act, transaction. occurrence or event. shall be adm issible in evidence in proof of that act. transaction. occurrence or event, if the judge fi nds that it was made in the regular course of any business and that it was the regular course of such business to make it. at the time of the act. transaction. occurrence or event. or \\'ith in a reasonable time thereafter. The Court of Appeals in People'" Guidice. 83 NY2d 630, 635. 612 NYS2d 350 ('1994) explained that "the essence of the business records exception to the hearsay ru le is that records systematically made for the conduct of business ... are inherently highly trustworthy because they a re routine reJlcctions or day-to-J ay operations and because the entrant' s obligation is to have them -3- [* 4] truthful and accurate fo r purposes of the conduct of the enterprise:· (quoting People v. Kennedy. 68 NY'.2d 569, 579, 510 NYS'.2d 853 ( 1986)). It is a unique hearsay exception since it represents hearsay deliberately created and differs from all other hearsay exceptions which assume that declarations which come within them \Vere not made deliberately with litigation in mind. Since a business record keeping system may be designed to meet the hearsay exception, it is important to provide predictability in this area and discretion shou ld not normally be exercised to exc lude such evidence on grounds not foreseeable at the time the record was made (see Troffi '" Estate of . Buchanan. 272 AD2d 660. 706 NYS2d 53-t (3"1 Dept.. '.WOO)). - The three foundational requirements of CPLR 4518(a) are: 1) the record must be made in the regular course of business- reflecting a routine, regularly conducted business activity. needed and relied upon in the performance of business functions; 2) it must be the regular course of business to make the records (i.e. the record is made in accordance with established procedures for the routine. systematic making of the record); and 3) the record must have been made at the time of the act, transaction, occurrence or event. or within a reasonable time thereafter, assuring that the recoll ection is fairly accurate and the entries routinely made (see People v. Kennedy, supra@ pp. 579-580)). The "'mere filing of papers received from other entities, even if such papers are retained in the regular course of business, is insufficient to qualify the documents as business records. " (People v. Cratsley, 86 NY2d 81, 90, 629 NYS2d 992 (1995)). The records will be admissible "if the recipient can establish personal knowledge of the maker· s business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business." (State of New York v. 1581" Street & Riverside Drive Housing Company. Inc.. 100AD3d 1293, 1296, 956 NYS2d 196 (2012); leave denied. 20 NY3d 858 (2013); see also Vivie.me Etienne Medical Care. P.C. v. Coun11y-Wide Insurance Company. 25 NY3d 498, 14 NYS3d 283 (2015); Deutsche Bank National Trust Co. v. Monica. 131 AD3d 73 7, 15 N YS3d (3rd Dept., 2015); People'" DiSalvo. 284 AD2d 547, 727 NYS2d 146 (2"d Dept., 2001); Matter of Carothers v. GEICO. 79 AD3d 864, 914 NYS2d 199 (2"d Dept., 2010) ). In this regard, with respect to mortgage foreclosures, a loan servicer' s employee may testify on behalf of the mortgage lender and a representative of an assignee of the original lender can rely upon business records of the original lender lo establish its claims for recovery of amounts due from the borrowers provided the assignee/plaintiff establishes that it incorporated the original records into its own records and relied upon those records in the regular course of business (landmark Capital Jnv. Jnc. v. Li-Shan Wang. 94 ADJu 418. 941 NYS2d 144 (1'' Depl., 2012); Portfulio Rec:overyAssociutes, LLC. ,._Lull, 127 AD3d 576. 8 NYS3d 10 I ( 151 Dept.. 2015): Merrill Lynch Business Financial Services. Inc. ''· Trataros Const met ion. lnc.. 30 AD3d 336. 819 NYS2d 223 (I st Dept.. 2006)). or The statute (CPLR 4518) clearly docs not require a person to have personal knowledge each and every entry contained in a business record, particularly in this case. where there is a business relationship between mortgage servicing entities responsible for entering and maintaining accurate records. and where the cu1Tent servicer has incorporated and relied upon the business records it maintains in its regu lar course of business (see Citihunk NA. \'. Abmms. 144 AD3d 1212. -+O NYSJd 653 (3rd Dept.. 1016)~ HSBC Bank US~.J. ./\I.A. '" ,)'age. 112 /\D3d 1126. 977 NYS2d 446 (3rJ Dept.. 2013 ): Landmark Capital Jnr. lnc:. '" LI-Shan Wang. supra.)). As the Appellate Division. Second Department recently stated in Citigroup\'. Kopclowil::.. 147 AD3d 10 J 4. 48 NYS3d 223 ('.~"J Dept., 2017): "There is no requirement that a plaintiff in a foreclosure action rely on a particular set of business records to establish a prima facic case. so long as the plaint iff satisfies the admissibi li ty requirements of CPLR 4518(a) and the records themselves actually evince the facts for which they -4- [* 5] arc relied upon. " Decisions interpreting CPLR 4518 are consistent to the extent that the three foundational requirements: 1) that the record be made in the regular course of business; 2) that it is in the regular course of business to make the record: and 3) that the record must be made at or near the time the transaction occurred. - if demonstrated, make the records admissible since such records are considered trustwo11hy and reliable. Moreover. the language contained in the statute specifically authorizes the court discretion to determine admissibility by stating "((the judge finds'' that the three foundational requirements are satisfied the evidence shall be admissible. The affidavit submitted from the mortgage lender/servicer (21 •1 Mo11gage Corporation·s) legal arfairs representative dated December 28. 2018 provides the evidentiary foundation fo r establishing the mortgage lender's right to foreclose. The affidavit sets forth the employee·s review of the business records maintained by the mo11gage lender/servicer: the fact that the books and records are made in the regular course of2l51 Mortgage Corporation 's business; that it was 21 ~1 Mortgage Corporation· s regul ar course of business to maintain such records; that the records were contemporaneously created at the time the underlying transactions occurred; and that to the extent such records were compiled by a prior servicer those records were integrated into the business records maintained by 2151 Mortgage Corporation and relied upon in the regular course of its business. Based upon the submission of this affidavit, plaintiff has provided an admissible evidentiary foundation which satisfies the business records exception to the hearsay rule with respect to the issues raised in this summary j udgment application. With respect to the issue of substitution, CPLR I 018 permits a party which obtains or receives a transfer of interest during the pendency of an action the right to continue to prosecute its claims by or against the original pa11ies unless the court directs joinder or substitution. Based upon the October 24. 2018 so-Ordered stipulation and the evidence submitted by 21 51 Mortgage Corporation proving that it is the current owner of the mortgage loan based upon the assignment dated April 13, 2016 from the original mortgage lender Wells Fargo Bank, N.A. to 2 !51 Mortgage Corporation and based upon the affidavit from 2151 Mortgage Corporation's legal affairs representative dated December 28, 2018 attesting to the physical transfer of the indorsed in blank promissory note to 2 is1 Mortgage Corporation· s headquarters for storage on February 11. 2016-- 2 !51 Mortgage Corporation retains the right to prosecute this foreclosme action against the defaulting mortgagor. As to standing. a review of the County Clerk's file reveals that Wells Fargo Bank, N.A. had standing to maintain this fo reclosure action based upon the fact that Wel ls Fargo attached a copy of the ori ginal indorsed in blank promissory to the summons and complaint, together with a Office or Court Adm ini stration attorney affirmation dated September 23, 2013 (which comp li es with the AOL requirements imposed at the time & the subseq uent statutory requirement (CPLR 30 12-b) which became cffecti \'e August 30. 2013 ). provides sufficient evidence of possession of the underlying note to establish plaintiffs standing to prosecute this foreclosure action (see flank ofNe11• fork Mellon'" Theohuld\'. 161 AD3d 1137, 79 NYS3d 50 (2 11d Dept.. 20 18): Bank ()fNe11· York Mellon\'. B11rke. 155 AD3d 932. 64 NYS3d 11.f (2"u Dept.. 2017); Wells Fargo Bank. NA. 1•. Thomas. 150 AD3d 1312. 52 1 YS3d 89.f C~"d Dept.. 2017): Deutsche Bank i\'ational li'ust Company'" Garrison. 1.f 7 AD3d T25 . .+6 NYS3d185 (2"J Dept .. 2017); L'.S. Bank. ,\'.../. 1·. Sam1•ww11. 146 AD3c.l 1010, .f5 NYS3d 5.f7 (:~"J Dept., 2017)). Any alleged issues concerning the mortgage assignment is therefore irrelevant to the issue of standing since the original plaintiff has established possession or the promissory note with the indorsement in blank prior to commencement of this action (F,\'.\ l-1 1·. >'akaput= ff. Inc .. 141 -5- [* 6] AD3d 506. 35 NYS3d 236 (211 u Dept., 20 16): Deutsche Bank National Trust Company''· Leigh. 137 AD3d 841. 28 NYS3d 86 (2"J Dept.. 2016)). With respect to the issue of this mo11gagor"s default in making payments. in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action. the plaintiff must submit the mortgage. the unpaid note and admissible evidence to show default (see PennyMac Holdings. Inc. V Tomanelli. 139 AD3d 688 . 32 NYS3d 181 (2"J Dept.. 2016); NorrhAmerican Savings Bank 1·. Esposilo-Como. 141 AD3d 706. 35 ' YS3d .+91 (2"J Dept .. 2016 ): Washington 1\J11111a! Bank''· Schenk. 1 12 AD3d 615. 975 NYS2d 902 (2"<l Dept .. 2013)). Plaintiff has provided admissible evidence in the fo rm of a copy of the note and mortgage, and an affidavit attesting to the mortgagor's undisputed default in making timely mortgage payments, together with business records including copies of the notices of default which were mailed to the mortgagor confirming her continuing default in making ti mely payments. sufficient to sustain its burden to prove defendant has defaulted under the terms of the parties agreement by failing to rnakc timely payments since June 1. 2009 (CPLR 4518; see Wells Fargo Bank. NA. v. Thomas. supra.: Citigroup v. Kopeluwitz. suprn.)). Accordingly. and in the absence of any proof to raise an issue of fact concerning the mortgagor's continuing default, plaintiffs appl ication for summary judgment against the defendant/mortgagor based upon his breach of the mortgage agreement and promissory note must be granted. With respect to service of pre-foreclosure RP APL 1304 90-day notices, the Jaw provides that although this defense is non-jurisdictional , it is a special defense which must be proven by submission of proof by submission of an affidavit of service of the notices (CitiMortgage, Inc. v. Pappas, 147 AD3d 900. 47 NYS3 d 415 (2 11<l Dept.. 2017); Deutsche Bank National Trust Company v. Spanos, 102 AD3d 909, 961 N YS2d 200 (2"d Dept., 2013)); or by plaintiff' s submission of sufficient proof to establish proof of mailing of the notices (see Narionslar Morr gage LLC v. LaPorte, 162 AD3d 784, 79 NYS3d 70 (2"d Dept., 2018); HSBC Bank USA, NA. v. Ozcan, 154 AD3d 822. 64 NYS3d 38 (2"u Dept., 201 7); Wells Fargo Bank. NA. v. Trupia, 150 AD3d 1049, 55 NYS3d 134 (2"J Dept., 2017)). Once either method is established a presumption of receipt arises ( Viviane Ettienne Medical Care. P. C. v. Counf1J -Wide Insurance Company. supra.: Flagstar Bank v. Mendoza. 139 AD3d 898. 32 NYS3d 278 (2"J Dept.. 2016)). 1 ln this case the record shows that there is sufficient evidence to prove that mailing by ccrtilkd and first 1,;lass mail was done proving strict compliance pursuant to RPAPL 130-+ 1nai ling requirements. Plaintiffs proof consists of the affidavit from the mortgage lender/servicer's (2 1si Mortgage Corporation's) legal affairs representative attesting and confirming strict compliance with mailing requirements set fo rth in the statute. The affida vit attests to the testator's personal fami liarity with 2151 Mortgage Corporation's standard business mailing practices related to the maili ng of90day notices and the incorporation or such records of mailing into 21 51 Mortgage Corporation's records upon which such records arc relied upon in the regular course of its business. In addition. plaintiff subm its a copy of the actual RP APL 1304 90-day notices which were mail ed by first class and certified mail to the defaulting mortgagor addressed to the mortgaged premises on March 20. 2013 which was more than ninety days prior to commencement of this action on July 24. 20 13. ln addition. plaintiff submits copies of the postal sen·ice return receipt request card addressed to the defaulting mortgagor lo the mortgaged premises residential address containing the t\\enty (20) digit article tracking number, the certificate of mailing label which corresponds to the certified mailing containing the identical twenty (20) digit tracking number and a third label which provides the receipt for the ccrtifieJ mailing. Plaintiff also has submitted a copy o f the RPAPL 1306 filing -6- [* 7] ' statement filed with the State Department of Financial Services further confirming the mailing of the 90-day notices. Such proof provides sufficient evidence to prove strict compliance with RP APL 1304 requirements (Cirilvfortgage. Inc. ''·Borek, 171 AD3d 848. 97 NYS3d 657 (2°<l Dept., 2019): Nationstar .Horrgage LLC ''· LaPorte, supra.: !ISBC Bank USA. NA. v. Ozcan. supra.}). Absent any rele\·ant. adm issible evidence to contradict the plaintiffs proof there is no legal basis to defeat plaintiff s summary judgment motion on these grounds (see PHH Mortgage C01p. '" .\Juricy, 135 AD3d 725, 24 NYS3d 137 (2°J Dept.. 2016): f/SBC Bank USA. NA. , .. Espinal. 137 AD3d 1079. 28 NYS3d 107 (2"d Dept., 2016)). With respect to defendant's remaining claims that she is entitled to discovery and that plaintiff has failed to prove ownership of the mortgage loan. neither contention has merit. CPLR 32 l 4 (b ) imposes an automatic stay of discovery upon service of a summary judgment motion. Moreover. even were the court to further consider defendant's claim of entitlement to discovery, no legal grounds exist to further delay prosecution of this action, since there has been no showing by the defendant how any additional evidence would create a genuine issue of fact. Absent some demonstration that reasonable attempts to discover facts might give rise to significant issues of fact. no basis exists to continue litigation in view of the fact that plaintiff has submitted sufficient proof to establish its entitlement fo foreclose this mortgage (see Lee v. TF DeMilo C01p.. 29 AD3d 867, 8I 5 NYS2d 700 (2"d Dept. , 2006) ; Sasson v. Selina Mfg.Co .. 26 AD3d 487, 810 NYS2d 500 (2nd Dept., 2006)). As to the defaulting mortgagor' s claim that there is no proof of ownership of the mortgage loan, plaintiff has submitted an affidavit from its legal affairs representative attesting to 2P1 Mortgage Corporation ' s physical possession of the indorsed in blank promissory note which this defaulting mortgagor signed promising to repay the entire amount of the mortgage indebtedness. Such proof is sufficient to establish the plainti ffs ownership of the note and mortgage and 2151 Mortgage Corporation's capacity to maintain this foreclosure action. Finally, defendant has failed to raise any admissible evidence to support her remaining affirmative defenses in opposition to plaintiffs motion. Accordingly those affirmative defenses must be deemed abandoned and are hereby dismissed (see Kronick v. LP. Therault Co .. Inc. , 70 AD3d 648, 892 NYS2d 85 (2nd Dept. , 20 I 0): Citibank. N A, ,.. Van Brunt Properties, LLC. 95 A03d 1158, 945 NYS2d 330 (2nd Dept., 2012); Flagstar Bank v. Bellqfiore. 94 AD3d 0144, 943 NYS2d 55 I (2"c1 Dept.. 20 12): Wells FarRO Bank Minnesota. NA. v. Perez. 41 AD3d 590, 837 NYS2d 877 (2"J Dept., 2007)). Accordingly plaintiffs motion seeking summary judgment is granted. The proposed order or reference has been signed simultaneously with execution of this order. HON. llOWARD 11. HECKMAN)R. Dated: July 30. 20 19 J. S.C. -7-

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