Rockaway Rutland Lender LLC v Progeny Bldgs. LLC

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Rockaway Rutland Lender LLC v Progeny Bldgs. LLC 2022 NY Slip Op 30479(U) February 23, 2022 Supreme Court, Kings County Docket Number: Index No. 522464/21 Judge: Lawrence S. Knipel 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] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 At an IAS Term, Part Comm 6 of the Supre me Court of the State of New York, held in and for the Count y of Kings, at the Courth ouse, at Civic Center, Brooklyn, New York, on the 23 rd day of February, 2022. PRE SEN T: HON. LA WREN CE KNJPEL, Justic e. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X ROCKAWAY Run,A ND LENDER LLC, Plaintiff, - against - Index No. 522464/21 PROGENY BUILD INGS LLC, PAMEL A GREEN , CAPIT AL ONE BANK (USA) N.A., NEW YORK STATE DEPARTMENT OF TAXAT ION AND FINAN CE, NEW YORK CITY DEPARTrv!ENT OF FINAN CE, NEW YORK CITY PARKING VIOLA TIONS BURE AU,NE WYOR KCITY ENYIR OMvlE NTAL CONTROL BOARD and JOHN DOE# 1 THROUGH JOJ-!N DoE-# 10 (said John Doe defend ants being fictitious, it being intended to name all other parties who may have some interest in or lien upon the premises sought to be foreclosed, Defendants. - -- - - -- - - - - - - - - - - - -- - - --- -- - --- - - - - - - -X The following, c~fllcd 11apers read herein: NYSC EF Doc Nos. Notice of Motio n/Orde r to Show Cause / Petition/Cross Motio n and Affidzivits {Affirmations) _ _ _ _ _ _ __ 18-29 Opposing Affida vits (Affirm ations ) _ _ __ 35-37 Reply Affidavits (Affirmations) _ _ _ __ 38 Upon the forego ing papers in this action to forecl ose a comm ercial mortg age encumbering the mixed -use property located at 1029 Rutland Road in Brook lyn (Block 4597, Lot 45) (Property), plaint iff Rocka way Rutland Lende r LLC (Rock away) move s (in 1 of 15 [* 2] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 motion sequence lmot. seq.] one) for an order: (1) granting it summary judgment against defendant Progeny Buildings LLC (Progeny or borrower), pursuant to CPLR 3212; (2) awarding it a default judgment against non-appearing defendants Pame la Green (Green or guarantor). Capital One Bank (USA) N.A. (Capital One), New York State Department of Taxation and Finance, New York City Department of Finance, New York City Parking Violations Bureau and the New York City Environmental Control Board, pursuant to CPLR 3215 (a): (3) appointing a referee to ascertain and compute the amount due under the note and mortgage being foreclosed and to determine whether the Property should be sold in one or more parcels, pursuant to RP APL 1321; and (4) amend ing the caption to delete the John Doc defendants. Background On September l, 2021, Rockaway commenced this commercial forecl osure action by filing a summons_, an unver ified complaint and a notice of pende ncy against the Property. The complaint alleges that on or about September 30, 2019, borrower, Progeny, executed and delivered to Prime Commercial Lending LLC (Prime) a $375,000.00 note, which was secured by a mortgage on the Property (complaint at ~l'il 7-8). The complaint also alleges that Green executed a guarantee of the loan "to induc e" Rockaway's predecessor, Prime, to make the loan (id at 11 15). The complaint alleges that "[t]he Borrower failed to make the monthly payment of principal and interest due under the Note on June I 0. 2021, and each month thereafter" and "[b ]y a letter dated June 18, 2021, Plaint iffs predecessor-in-interest advised the Borrower and Guarantor of the foregoing 2 2 of 15 [* 3] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 events of default and demanded the immediate payment in full of all of Borrow er's obligations" (id. at ~1i 18 and 20). Allegedly, "there is now due and owing from the Bonow cr to Plaintiff: under the Note and the Mortgage, princip al in the amount of $373,530.71, plus interest ... " (id. at 11 22). Regarding Rockaw ay's standing tb foreclose, the complaint alleges that ""[p]ursuant to an Assignment of Mortga ge dated September 23, 2019, Prime , .. assigned all of its right, title and interest in and to the Mortgage to KCMI Capital Inc. ('KCM I')" and "Prime ... also executed and delivered to KCMI an allonge with respect to the Note" (id. at ~111011 ). Importantly, this alleged mortgage assignment was executed one week before the mortgage and guaranty were allegedly executed by Progeny and Green, respectively, on September 30, 2019. The complaint alleges that "[p]ursuant to an Assign ment of Mortga ge dated July 8, 2021, KCMI assigued all ofits right, title and interest in and to the Note and the M01igagc to Rockaway ..." and "KCMI also executed and delivered to Rockaw ay ... an allonge with respect to the Note and a Lost Note At1idavit" (id. at ~112-1 3). The complaint annexes collectively as Exhibit I: (1) a July 8, 2021 "Allong e" that explicitly states that "[t]his Allonge ... is attached to and made part a/the followi ng instrument: Promissory Note dated September 30, 2019, made by Progen y ... in favor of Prime ... assignor of'KCM I ... ('Lende r') in the original principal amount of$375 ,000.00 , for the purpose of annexing thereto the following endorsement[,]" which was executed by Ken Markizon, KCMJ' s President, to the order of Rockaw ay; (2) an acknow ledgem ent of Ken Markiz on's signature in Camden, New Jersey, by notary Kenneth Olin that appears 3 3 of 15 [* 4] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 alone on a separate, unnumbered page, ahhough there is sufficient room on the page containing the "Allonge"; (3) a July 8, 2021 ·'Lost Note Affidavit" by Ken Markizon of KCMI attesting that "KCMI is the legal owner and holder of the Note[ ,]" which "was assigned to KCMI by Allonge dated September 27, 2019 ... " (three days before Progeny took out the loan on September 30, 2019); "KCMI is assigning the Note and Allonge to ROCKAWAY ... "; "[t]he Note and Allonge have been misplaced, lost and/or destroyed"; "KCMI has conducted a diligent search and inquiry to find the original Note and Allonge and has been unable to do so"; and "[a]ttached hereto are true, complete and correct copies of the original Note and Allonge"; (4) a one-page, unnumbered and undated "Allonge" executed by Jon Cosentino of Prime, which references "Loan Date: Septe mber 27, 2019" and "states that "ffjor value received, the undersigned hereby assign s, transfers, and pledges without recourse to KCMI ... the attached mortgage note to which this Al/onge is and remains physically affixecf' and "[w]itness the due execution of this Allonge on this day of ____ __"; and (5) a copy of the three-page promissory note execu ted by Green on September 30. 2019 "as 100% member of' Progeny (see NYSCEF Doc No. 2 [emphasis added]). The complaint also annexes the September 30, 2019 mortgage as Exhibit 2. The complaint annexes collectively as Exhibit 3: (I) an "Assignment of Mortgage" pursuant to which Prime assigned ''la] certain Mortgage, dated the 27th of September, 2019, executed between Prime .. , and Progeny[,]" which assign ment is executed by Jon Cosentino of Prime on September 27, 2019 (three days prior to Progeny's alleged execution of the note and mortgage), but is notarized four days earlie r on September 23, 4 4 of 15 [* 5] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 2019; (2) the recording page for the Assignment ofM0 1igag e; (3) a Septe mber 30, 2019 "[RPL] Section 275 Afiid avit" from Green attesting that "I am a mem ber of Progeny ... the mvncr (mortgagor) of the property subject to the mortg age which is being assigned" and "[(]he assignee set forth on the assignment of mortgage to which this affidavit is attached is not acting as a nominee of the owner (mortgagor ) of the property, and the mortgage continues to secure a bona fide obligation" (see NYS CEF Doc No. 4 {emphasis added]). The complaint also annexes as Exhibit 4 a July 8, 2021 "Assi gnme nt of Mortgage" executed by Ken Markizon, KCM I's President, pursuant to which KCMI assigned only the mortgage to Rockaway (see NYSCEF Doc No. 5) .. The complaint annexes as Exhibit 5 a June 18, 2021 defau lt letter addressed to Progcncy and Green advising that "Events of Default have occurred unde r the Loan Documents based on, among other things, the Borro wer's failur e to make the required payments when due under the Note on June 10, 2021" and "[b]y reason of the foregoing Events of Default, all sums due under the Note are hereby accelerated, and demand is hereby made to Borrower and Guarantor for immediate paym ent in full of all obligations of the Borrower due under the Loan Documents" (see NYSCEF Doc No. 6). On September 20, 2021, Progeny answered the complaint, denied the material allegations therein and asserted affirmative defenses, includ ing: (I) that the notice of default was either not sent in accordance with the express terms ofthe mortgage or did not contain the language required; (2) lack of standing; (3) statute oflim itatio ns; and (4) failure 5 5 of 15 [* 6] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 to join necessary parties. Progeny also asse rts a counterclaim for reas ona ble atto rney s' fees. On Sep tem ber 24, 202 1, Roc kaw ay replied to Pro gen y's cou nter clai m, denied the allegations therein and asserted affirmative defenses. Rockaway's Instant Motion On Oct obe r 27, 202 1, Roc kaw ay filed the instant mot ion for sum mar y judg men t against Progeny, a defa ult judg men t against the othe r non -app eari ng defe nda nts, an orde r of reference and to ame nd the caption. Roc kaw ay subm its a July 8, 2021, 1 "Bu sine ss Rec ord Aff idav it" from Ken Markizon, President ofK CM I since Oct obe r 1, 2015_, who attests that: "An nex ed here to arc true, accurate and com plet e copies of doc ume nts evid enci ng the loan history for Loa n Num ber 000 000 002 634 (the 'Loa n His tory ') ... The unpaid principal bala nce as of the date here of is $373,530.71 . "Th e doc ume nts constituting the Loa n Hist ory prod uce d hetcvvith were crea ted and/or updated by me pers ona lly or by personnel or staf f und er my control or supe rvision emp loye d by KCM L in the regu lar course of business of KCM I, at the time of the transactions or occurrences reco rded ther ein, Or within a reasonable time thereafter and it was the regu lar course of busi ness of KCM I to mak e and mai ntai n the Loa n History. "Th e Loa n Hist ory consists of records show ing the credits and debits agai nst the balance of the loan mad e to the borr owe r Progeny ... The Loa n History is based on the loan info rma tion including: the principal amo unt loaned, the date the loan 1 Apparcnily. Ken Markizon's July 8, 2021 ''Bu siness Record Affidavit was executed the very same day that Markizon executed the "Lost Note Affidavit" and the "Assignment of Mortgag e" from KCMI to Rockaway and all three doctm1c nts are notarized by Ken 6 6 of 15 neth Olin. [* 7] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 commenced, the amount of the monthly payments the breakdown of principal, interest and escrow, city taxes hazard insurance and the interest rate applied and other relevant documents. During the servicing of the loan, the amounts received and the date the payments were received were also made a part of the_ Loan History contemporaneously as said payments were received. Also made a part ofthe Loan History are the dates and amounts of advances or payments made by KCMI on the loan on the borrower's behalf. "J have personal knowledge of the Loan History of this account as 1 reviewed it prior to executing this document. 1 also oversaw the maintenance of such Loan History in KCMJ's business records, in my capacity as President of KCML I hereby affirm ... that the forgoing and the Loan History annexed hereto as Exhibit A is a true, complete and accurate copy of the electronic printout and other documents constituting the Loan History maintained by KCMI for this account" (see NYSCEF Doc No. 20). Exhibit A to Markizon's "Business Record Affidavit" is the "Loa n Historyn from "9-3019'' through "6-25/21'' containing the "Note number" of 2634 -000 and identifying Progeny. The payment history reflects that the interest rate charg ed and late fees were assessed beginning in June2021 (seeN YSC EF Doc No. 21). Rockaway also submits an affidavit from Ralph Dweck (Dweck), who atlests that "I am authorized to submit this affidavit on behal f of Plaintiff Rockaway ..." and that "[t]he facts and matters set forth in this affidavit are based upon my personal knowledge and/or my review of Rockaway['s] business records, the business records ofRo ckaw ay['s ] predecessor-in-interest, or the publicly-available documents main tained by the,Clcrk of the Court." Dweck further alleges that ''[i]n the regular perfonnanc e ofmy job functions, I am familiar with the business records maintained by Rockaway ... in its loan portfolio'' which 7 7 of 15 [* 8] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 includes documents generated by Roc kaway in the ordinary course of its businessoperations and "all of the loan documents purchased from its predecessors-in-inte rest and all file documents that were formally in the possession of said predecessors-ininterest." Specifically_, Dweck attests that: "KCMJ['sJ business records concerning the Loan, including transactional documents, default notices and Joan/payment histories, were incorporated into Roc kaway['s] business records when it acquired the Loan and Roc kaway ... routinely relics upon said records in the conduct of its business and keeps said records in the ordinary course of its business." Dweck attests that Rockaway seeks to fore close the mortgage against the Property, describes the chain of title of the mortga ge, including the mortgage assignments . Dweck avers that "KCMT also executed and deli vered to Rockaway ... an allonge with respect to the, Note and a Lost Note Affidavit, both of which are annexed to the Complaint" and "Rockaway ... is the sole, true, and law ful owner and holder of the Note, the Mo rtgage and the Guaranty ... '' Dweck reiterat es the events of default alleged in the complaint, including that Progeny ''failed to make the monthly payment of principal and inte rest due· under the Note on June I 0. 2021, and eac h month thereafter." Dw eck 's affidavit annexes the following exhibits: (I) a copy of the complaint with all exhibits; (2) a copy of the guaranty; (3) a copy of KCMI's Loan History, which was incorporated into Roc kaway's business records; (4) afJidavits of service; (5) Progeny's answer with counterclaim; and (6) Rockaway's reply 10 counterclaim. Rockaway also submits an attorney affi rmation arguing that "[p]laintiff has mad e out a prima facic case for summary jud gment against the Borrower and Guaran tor by 8 8 of 15 [* 9] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 submitting true and accurate copies of the subject loan documents and conclus ively establishing that the Borrower and Guarant or are in default of their obligations under said Joan documcnls." Roc kaw ay's counsel furt her affirms that "the Dweck Affidavit (and the exhibits thereto) conclusively established that Plaintiff had standing to commence (and pursue) this foreclosure action" because "Ex hibits A-3 and A-4 ... contain recorded cop ies of the assignments of the Mo rtga ge und erlying this case to Plaintiff'' and "Ex hib it A-1 includes allonges endorsing the Note und erlying this case to Plaintiff." Roc kaw ay's counsel contends that "Borrower cann,ot raise a triable issue of fact that should prec lude this Court from granting summary jud gme nt in favor of Pla inti ff ... " Progeny's Opposition Progeny, in opposition, submits an affidav it from Green, its "managing member,'' who attests that '·tp] lain tiff is unable to esta blish standing as a rev iew of Pla inti ffs own submissions shows that Pla inti ffs pred ecessor was somehow allegedly assigne d the subject note and mortgage prio r to the exec ution and existence of the subject note and mortgage" (emphasis added), Green furt her attests that "[p] lain tiff [] has not pro duced evidence in admissible form to prove stan ding, the default, and other aspects of its prima facie case for foreclosure." Progeny also submits an attorney affirma tion in which defense counsel asserts that there arc "'inconsistent accounts presented in the affidavits and affirmations which resu lt in questions of fact which require trial for reso lution." Defense counsel argues that "both the Dweck and Markizon affidavits along with the documents they relied upon, have no 9 9 of 15 [* 10] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 evidentiary value as the documents and testimony derived from them constitute hearsay ... " because they arc conclusory. Defens e counsel further argues: "In the Dweck Affidavit at Paragraph 11, Dweck testifies that the subject not e and mortgage were execute d on September 30, 2019. However, at paragraph 15, Dweck claims the Pla inti ffs predecessor-in-interest (KCMI) was assi gned the subject note and mortgage by virtue of an assignment executed and dated September 23, 2019, seven days prior to the existence of the subject note and mortgage . .. The dates testified to by Plaintiff are crucial because if Pla inti ffs testimony is accurate, it mu st follow that KCMI (later by extension Plaintif1) was assigne d a note and mortgage tlrnt did not exist at the time of its executi on. '·Further, in Pla inti ffs complaint, and as reproduced in Plaintiff's Exhibit A at page 31, there is the initial assignment where the loan originator Prime ... by and through President Jon Cosentino, purports to assign the ... mortgage to KCMI. However this assignment references a mortgage dated September 27, 20 I 9, not as referen ced by Pla inti ffs Af!irmation, the Dweck Affidavit, and Pla inti ffs complaint at paragraph 8 as the note and mortgage dated September 30, 2019. '·It must follow that either Plaintiff was assigned a different note and mortgage which is fatal to this foreclosure action, or Plaintiff's records contain factual errors which require examinations of credibility." Defense counsel also notes that the Sep tember 27, 2019 mortgage assignment stat es that it was executed by Pri me 's President on Sep tember 27, 2019, yet his signature was pre viously notarized on September 23, 2019. Defense counsel contends that "[t]he factual implausibility or clear errors in record kee ping utterly refute any inference of reliabil ity of this document'· and "!_w]ithout those hallmarks of reliability, they cannot qualify as IO 10 of 15 [* 11] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 business records and would therefore be inad missible hearsay.'' Defense counsel further asserts that the inconsistencies in Rockaw ay's records and testimony "draws into que stion the totality of Plaintiff's submissions ... " and "[p]laintiff's prima facie case rega rding standing, evidence of the default, notice requirements, and compliance with any other contractual provisions is in doµbt." Rockaway's Reply Rocbnvay, in reply, submits an attorney affirmation asserting that Rockaway's "moving papers conclusively established the Borrower's execution and delivery of the Note and the Mortgage and Borrower's defa ult under same" and "[b]ased on this showin g by Plaintiff, the burden has shifted to the Bon -ower ... " to raise material issues of fact. Regarding standing, Rockaway's counsel argues that: '"Plaintiff's Complaint and its moving pap ers include as an Exhibit a written assignment (i.e., an al!o nge) of the subject Note from the original lender Prime ... to KCMI ... and a subsequent allonge from KCMI ... to Pla inti ff ... Bor row er's opposition does not contest the validity of these allonges. '·This written assignment of the Note to Plaintiff, which predates the commencement of this action by more than two months, in and of itself, establishes Pla inti ffs standing to pursue this action." Rockaway's counsel also asserts that the assi gnments of mortgage are not the "dispositiv e documents'' and that ''the assignment of mor tgage includes as an attachment an affidav it ofBorrQ\:ver's principaJ Pamela Green atte sting as to the validity of the assignment!" II 11 of 15 [* 12] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 Discussion Summary jud gm ent is a drastic remedy that deprives a litigant of his or her day in court and should, thus, only be emplo yed when there is no doubt as to the abs ence of triable issues of material fact (Kolivas v Kircho ff, 14 A0 3d 493 [2005]; see also And re v Pomeroy, 35 NY2d 361. 364 f 1974]). 'Th e pro ponent of a motion for snmmary jud gm ent must make a prima facie showing of entitlement to judgment, as a matter of law, tender ing sufficient evidence to demonstrate the absence of any material issues of fact" (Manic one v City of New York, 75 AD 3d 535. 537 [2010] , quoting Alvarez v Prospecvt Hosp., 68 NY2d 320, 324 [1986]; see also Zuckerman v Cit y ofNew York, 49 NY 2d 557, 562 [19 80]; Winegrad v New York Univ. A1ed. Ctr., 64 NY2d 851 ,85 3 [1985]). !fit is determined that the movant has made a prima facic showing of ent itlement to summary judgment, "th e burden shifts to the opposing party to produce eviden tiary pro of in admissible form suffici ent to establish the existence of' material issues of fact which require a trial of the action" (Garnham & Han Real E,·tate Brokers v Oppenhei mer, 148 AD2d 493 [1989]). Generally, to establish prima facie ent itlement to jud gm ent as a matter of law in an action to foreclose a m01igagc, a plainti ff must produce the mortgage, the unp aid note, and admissible evidence of the borrow er's default (see Deutsche Ba nk Nat l. Trust Co, v Karibandi, 188 AD 3d 650, 651 [2020] ; Christiana Trust v Mone/a, I 86 AD 3d 1604, 1605 [2020]; Deutsche Ban k Trust Co. Am s. v Garrison, 147 AD 3d 725. 726 [2017]). Where the jssuc of standing is raised by a def endant, a pla inti ff must also establish its standing as part of its prima facie case (see Deu tsche Bank Trust Co. Ams. v Garrison, 147 AD 3d at 12 12 of 15 [* 13] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 726; Security Lending, Ltd. v New Realty Corp., 142 AD 3d 986, 987 [20 16]; LG F Holdings, LLC v Skydel, 139 AD 3d 814 ,81 4 [2016]). "A pla inti ff L~stablishes ils stan din g in a mo rtga ge foreclosure acti on by demonstrating that it is bot h the holder or assignee of the subject mo1igage and the hol der or assignee ot't he und erly ing note al the time the action is com me nce d.,. " and may do so "by showing eith er a written ass ign men t of the und erly ing note or the physica l delivery of the note'· ( US. Bank N.A. v Guy, 125 AD 3d at 846-847). It is wel l-es tab lish ed that "eit her a written assi gnm ent or the underlying note or physical deli ver y of the not e prio r to the commencement of the foreclosure acti on is sufficient to tran sfer the obl igat ion , and the mortgage passes with the deb t as an inseparable incident" ( US . Bank, NA . v Adrian Collymore, 68 AD 3d 752, 754 [2009]; see also Deutsche Bank Nat'! Tr. Co. v Horowitz, 163 AD3d 764, 765 [2018]). Wh ere a pla inti ff establishes prima faci e enti tlem ent to jud gm ent , the burden then shifts to th-e def end ant to raise a triable issue of fact as to a bona fide def ens e to the action (CitiMortgage, Inc. v Guillermo, 143 AD 3d 852, 853 [2016]; Mahopac Nat l. Ban k v Baisley, 244 J\D 2d 466 ,46 7 [19971). Here, Roc kaw ay has failed to establis h its stan din g to fore clos e and Roc kaw ay's own pleading and mo vin g submission s raise several triable issu es of fact regarding Rockmvay and its pre dec ess or's own ership and pos ses sion of the und erly ing not e that preclude the reli ef Roc kaw ay now seek s. for example, Ken Ma rkiz on' s July 8, 2021 "Lo st Note Arfidavit'" (an nex ed as part of Exh ibit I to the complaint), in whi ch Markiz on attests 13 13 of 15 [* 14] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 that "KCMI is the legal own er and holder of the Note " beeause the note "was assigned to KCMI by Allongc dated September 27, 2019 , .. " raises serious questions regarding Rockaway·s standing to foreclose because the prom issory note could not possibly have been transferred to Roc kaw ay's predecessor, KCM I, three days before Prog eny executed the promissory note on September 30, 2019. The Sept emb er 27, 2019 "All onge " referenced in Mar kizo n's "Los t Note Affidavit" (ann exed to the com plain t as Exhibit I) reflects that if hns a blank space where the date was not fille d in and it erroneously references ''Loa n Date: Sept emb er 27, 2019 " (see NYSCEF Doc Nos. 2 and 23). Furthermore. the allonges annexed to Rock away 's mov ing papers do not appear to be firmly ai1ixed to the promissory note, as required under the Uniform Commercial Code (UCC), and appear on separate, unnumbered page s, raising triable issnes of fact (see- Bayview Loan Servicing, LLC v Kelly, 166 AD3d 843, 846 [2018] [holding that "the re is a triable issue of fact as to whether the note was properly endorsed in blan k by an allonge 'so firmly affixed thereto as to become a part ther eof whe n it cam e into the possession of Wells Fargo, which later endorsed the note to the plaintiff'']). Finally, Rock away 's contention that Gree n's Sept emb er 30, 2019 affidavit (see NYSCEF Doc No. 4) "attest[ed] to the validity of the [mo1igage] assignment" is rejected since a rno1igage is merely security for a debt evidence d by a promissory note and a trans fer of the mortgage ,-vithout the underlying promissor y note is a nullity, and no interest is acquired by ii (Bank ofN .Y v Silverberg, 86 AD3 d 274, 280 [2011] [emphasis added]). Accordingly, it is hereby 14 14 of 15 [* 15] INDEX NO. 522464/2021 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/24/2022 OR DE RE D that Roc kaw ay's mo tion (mot. seq. one) is only gra nte d to the extent that the caption is ame nde d to delete the Joh n Do e def end ant s; the motion is otherwise denied. This constitutes the decision and order of the court. EN TE R, HON. LAWRENCE KNIPEL ADMINISTRATIVE JUDGE 15 15 of 15

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