The following papers were read and considered on the motions submitted on December 1, 2022: NYSCEF Doc. Nos. 47-116, inclusive. DECISION & ORDER Plaintiff in this matter moves for an Order from this Court granting summary judgment pursuant to CPLR §3212; denying and dismissing defenses and counterclaims asserted in the answer pursuant to CPLR §3211(b); appointing a referee to determine the amount due and to ascertain whether the premises may be sold in Parcels. Plaintiff further moves that the caption be amended to substitute Juan “Doe”, Marcelo Mendez, Martha Cortez, Rodolfo Vasquez and Noelia Morales, as party Defendants in place of “John Doe” without prejudice to the previous proceedings in this case; that all non-appearing and non-answering defendants be deemed in default, and the defaults be fixed and determined; and for such other and further relief as to the Court may deem just and proper. Defendant Robert Marchisotto (hereinafter “Defendant”) opposes Plaintiff’s motions and cross-moves for summary judgment pursuant to CPLR §3212(b) on Defendant’s thirteenth affirmative defense, that the Plaintiff failed to strictly comply with the pre-foreclosure notice requirement under RPAPL §1304; on Defendant’s nineteenth affirmative defense, that the Plaintiff failed to serve the default notice pursuant to the terms of the subject Note; on Defendant’s fourth affirmative defense, that the Plaintiff failed to state a proper cause of action upon which relief can be granted pursuant to CPLR §3211(a)(7); and awarding attorney fees to Defendant pursuant to Real Property Law §282; and for other relief that the Court deems proper. Plaintiff’s motion for summary judgment, to dismiss the Defendant’s affirmative defenses and counter-claims and for other requested relief is hereby granted. Defendant’s cross-motion for summary judgement and other relief is hereby denied. Plaintiff has presented a prima facie case for summary judgment, which Defendant has not rebutted with his submissions. A motion for summary judgment requires that the movant establish its entitlement to judgment as a matter of law by demonstrating the absence of a material issue of fact. (See Union Mut. Fire Ins. Co. v. Johnson, 189 A.D.3d 1519, 1520 (2d Dept. 2020) and Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985)). If the moving party has demonstrated a prima facie case entitling him to summary judgment, the burden shifts to the opposing party, who must demonstrate the existence of factual issues sufficient to require a trial through admissible evidence, with some limited exception, in order to deny summary judgment. (See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980)). A plaintiff moving for summary judgment to foreclose a mortgage establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (Village Bank v. Wild Oaks Holding, Inc., 196 A.D.2d 812, 812 (2d Dept. 1993)). When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to his default. (Ibid; see also Metro. Distribution Servs., Inc. v. DiLascio, 176 A.D.2d 312, 312 (2d Dept. 1991)). The Court finds that Plaintiff’s filings in this case establish a prima facie case for foreclosure. While Defendant presented thorough arguments in opposition and in support of his cross-motion, the Court finds they do not overcome Plaintiff’s prima facie case for summary judgment, and do not present any disputed issues of material fact that require resolution through a trial. Relatedly, CPLR §3211(b) provides that a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. As the party moving for dismissal of a defense as a matter of law, the Plaintiff has the burden of proving its entitlement to such relief. (Town of Hempstead v. Lizza Indus., Inc., 293 A.D.2d 739, 740, 741 (2d Dept. 2002)). In reviewing such a motion, a court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference. (See Fireman’s Fund Ins. Co. v. Farrell, 57 A.D.3d 721 (2d Dept. 2008)). However, where affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPLR 3211(b). (Bank of America, N.A. v. 414 Midland Ave. Assocs., LLC, 78 A.D.3d 746, 750 (2d Dept. 2010)). A motion under CPLR 3211(b) also may be granted if the plaintiff can demonstrate that the defenses are without merit as a matter of law because they either do not apply under the factual circumstances of the case or fail to state a defense. (Bank of America, N.A. v. 414 Midland Ave. Assocs., LLC, 78 A.D.3d at 748). The Court finds that Plaintiff has met its burden regarding this portion of its motion as well, as further discussed below. Defendant opposes Plaintiff’s motion and asks the Court to grant summary judgment in his favor by asserting that Plaintiff has failed to comply with notice requirements of RPAPL, specifically §1303 and §1304, as well as those of the note and mortgage documents. (See Defendant’s Answer, affirmative defenses twelve and thirteen, NYSCEF Doc. No. 38, as well as his motion papers). As discussed in more detail below, the mortgage in this case falls outside of the purview of a “home loan” as that term is defined in RPAPL §1304. Similarly, RPAPL §1303 applies to mortgagors of owner occupied properties and to tenants. Regardless of this issue, the Court finds that Plaintiff has met his burden of showing compliance with the notice requirements of the RPAPL, as well as those of the note and mortgage documents. A plaintiff can demonstrate compliance with the notice requirements of RPAPL §1304 by proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or by proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed and sworn to by someone with personal knowledge of the procedure. (Citibank, N.A. v. Conti-Scheurer, 78 A.D.3d 746, 748 (2d Dept. 2019); CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 555-556 (2021)). Further, where the records of a third-party vendor or agent who assists with the mailing process are incorporated into and made part of the business records of the mortgage servicer and routinely relied upon by the in the regular course of business, such records have been found to have the indicia of reliability and to qualify as business records that may be considered in determining compliance with the RPAPL’s foreclosure notice requirements. (See U.S. Bank National Association v. Jean-Charles, 198 A.D.3d 998, 1000 (2d Dept. 2021)). In this case, regarding the notice of default and the pre-foreclosure notices, Plaintiff’s exhibits include, for example, an affidavit detailing the standard mailing practices and procedures, as well regarding the specific mailings of notices in this matter. Plaintiff also includes copies of the underlying mailings, and business records regarding them, including some postal records. (See Plaintiff’s Exhibit “F” in opposition to the cross motion, Affidavit and attachments, NYSCEF Doc. No. 110). This Court agrees that the evidence established Plaintiff’s compliance with the notice requirements of the RPAPL and the note and mortgage and created a rebuttable presumption that the recipient received the notice. (See Countrywide Home Loans, Inc. v. Brown, 305 A.D.3d 626, 627 (2d Dept. 2003) and Grogg v. South Rd. Assoc., L.P., 74 A.D.3d 1021, 1022 (2d Dept. 2010)). Defendant has not overcome this by alleging that he did not receive the notices. (See Citibank N.A. v. Conti-Scheurer, 172 A.D.3d 17, 24 (2d Dept. 2018) (mere denial of receipt is insufficient to defeat motion)). While Defendant asserts that he had a different address than those to which the notices were sent, he does not assert that he advised Plaintiffs of his change of address, or that he was not able to receive mail at the subject premises, which was titled in the name of an LLC, co-defendant MRJ, LLC, of which Defendant avers he was the sole owner and principal. (Affidavit of Defendant, para. 2, NYSCEF Doc. No. 88). Defendant also opposes Plaintiff’s motion and asks the Court to grant summary judgment in his favor by asserting that Plaintiff has failed to comply with the bright-line “separate envelope” rule of Bank of America, N.A. v. Kessler, 160 N.Y.S.3d 277 (2d Dept. 2021), which interpreted the mailing requirements of RPAPL §1304 to prohibit inclusion of any other information in the pre-foreclosure notice. As noted above, Plaintiff has met his burden of showing prima facie that this requirement does not apply in this case as the situation does not appear to be one involving a home loan. RPAPL §1304 applies to home loans, and the definition of “home loan” has included, throughout the various amendments to this section, the requirement that the loan be secured by a mortgage or deed of trust on real estate which “is or will be occupied by the borrower as the borrower’s principal dwelling.” (RPAPL §1304; see Nationstar Mortgage v. Sims, 197 A.D.3d 1178, 1178 (2d Dept. 2021); see RPAPL former 1304(5)). A loan is not a “home loan” as to a defendant who has not lived at the subject property as his principal residence. (Citibank, N.A. v. Crick, 176 A.D.3d 776, 778 (2d Dept. 2019); see also Vanderbilt Mortgage and Finance Inc v. Ammon, 179 A.D.3d 1138 (2d Dept. 2019)(where the loan related to a multi-unit rental property and owner resided elsewhere the loan was not a “home loan”)). Defendant, in his affidavit on the instant motions, indicates that he does not live in the subject property. His affidavit includes general language on the issue of his occupancy of the property. He states therein, “Upon purchasing the property in 2006, I used or occupied or intend to occupy the property as my principal residence pursuant to the paragraph ’6′ of the subject Mortgage contract.” (Affidavit of Defendant, para. 7, NYSCEF Doc. No. 88). The affirmation of his attorney uses similar general language to describe this issue. (Affirmation, para. 13, NYSCEF Doc. No. 87). These conclusory averments, which, it could be argued, are “tailored to the statute” in an attempt to raise a triable issue of fact, are not sufficient and do not defeat Plaintiff’s prima facie showing that summary judgment is appropriate. (See Sanchez v. City of New York, 305 A.D.2d 487, 487 (2d Dept. 2003)). In this case, Defendant transferred ownership of the property into an LLC, co-defendant MRJ, LLC, of which Defendant explains he is the sole principal and which he controls. (See Affidavit of Defendant, para. 10, NYSCEF Doc. 87). Although Paragraph 6 of the mortgage document indicates that the borrower must reside in the property during the first year following the closing, a rider to the mortgage, entitled “Family Rider,” executed on the same day, contemplates that the property would be used as a rental. It appears to eliminate the owner residency requirement. It states that any provision in the mortgage documents regarding occupancy by the borrower is waived by both parties unless specified otherwise. (See Exhibits to Vieau Affidavit in Support of Summary Judgment, page 30 of 196, NYSCEF Doc. No. 67). The “Family Rider” also specifically states that defendant should maintain rent loss insurance, and that the lender may require assignment of leases upon default. (Exhibits to Vieau Affidavit in Support of Summary Judgment, page 30 of 196, NYCSEF Document No. 67, page 31 of 196). Hence, while the Court finds that Plaintiff has met its burden of showing that this is not a home loan without regard to this mortgage and rider language, it also notes the terms of the mortgage with its rider did not require occupancy by the debtor, but instead contemplated the property would be rented to others. Defendant also argues that the complaint does not state a cause of action on which relief can be granted because the complaint did not properly accelerate the debt. The complaint, Defendant asserts, does not include a specific averment so declaring, and as such, he argues, that it does not comply with the law or with the provisions of the note and mortgage. Defendant has failed to raise a material issue of disputed fact regarding this issue. The note and mortgage documents give the lender the right to accelerate the debt; to demand immediate payment; and to file an action for foreclosure. (See Affidavit in Support of Summary Judgment, para. 22 NYSCEF Doc. No. 67, page 27 of 196). The notice of default also stated specifically that the debt may be accelerated. The Complaint seeks judgment accelerating the debt. Commencement of a foreclosure action has been found to be sufficient to put the borrower on notice that the option to accelerate the debt has been exercised. (See Wells Fargo Bank, N.A. v. Burke, 94 A.D. 3d 980, 983 (2d Dept. 2012); see also Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 476 (1932) (we are satisfied, however, that the unequivocal overt act of the plaintiff in filing the summons and verified complaint and lis pendens constituted a valid election [to accelerate the debt])). Defendant also asserts that Plaintiff does not have standing to sue; alleges various defects in the assignment of the mortgage; and alleges that Plaintiff did not own, hold or possess the note at the time of the action was commenced, among other arguments. (See second, seventh, eighth, tenth, and twenty-second affirmative defenses). The Court finds that these arguments and defenses are without merit; that no dispute of material fact exists regarding them; and that these contentions do not impact Plaintiff’s prima facie case. (See Exhibit 5, Del Rio Affidavit of Possession of Original Note, Vieau Affidavit in Support of Summary Judgment, NYSCEF Doc. No. 67, page 188 of 196) (See U.S. Bank National Association v. Combs, 177 A.D.3d 1014, 1016 (2d Dept. 2019) (Mortgagee established its standing to commence foreclosure action against mortgagors by attaching a copy of note, endorsed to mortgagee, to its foreclosure complaint, thereby demonstrating that it had physical possession of note when it commenced foreclosure action); see also Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 362 (2015) (holder of the note is deemed the owner of the mortgage with standing to foreclose)). Defendant also opposes summary judgment by averring that the note and mortgage contain unknown redactions and markings that appear to be different than the note and mortgage he signed. (See affirmative defense twenty-one). He specifically denies “the authenticity of the signature on the copy of the alleged Note and Mortgage that accompanied Plaintiff’s motion.” He alleges the redactions and markings, which he does not describe or discuss with any specificity, indicate that there appear to be two different sets of documents. He further states that he is “unable to fully litigate this defense without the production and examination of the original Note and Mortgage.” (See also affirmative defenses seven and eleven). A bald assertion of forgery is not sufficient to create an issue of fact contesting the authenticity of a signature. (Banco Popular N. America v. Victory Taxi Mgmt., Inc., 1 N.Y.3d 381, 384 (2004)). Similarly, conclusory, unspecific allegations are insufficient to overcome a plaintiff’s prima facie case for summary judgment. Averments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment. (Ibid, citing Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290 (1973)). The Court finds that there is no merit to the conclusory assertions made on these issues. (See Bank of America, N.A. v. 414 Midland Ave. Assocs., LLC, 78 A.D.3d at 748). Defendant has waived his eighteenth affirmative defense, lack of personal jurisdiction by failing to move within 60 days by motion from the date of the answer (CPLR §3211[e]). It further finds that he does not raise any colorable issue regarding the propriety of service. No questions of fact are raised regarding Defendant’s other arguments in opposition, in his cross claims and his other affirmative defenses. The Court finds that his arguments regarding them are without merit and include unspecific conclusions of law and conclusory statements of fact, many of which do not apply to the factual situation presented in this case. As such, they are not sufficient to defeat Plaintiff’s showing of his entitlement to summary judgment and to dismissal pursuant to CPLR §3211(b). (See Banco Popular N. America v. Victory Taxi Mgmt., Inc., 1 N.Y.3d at 384 (2004); Bank of Am., N.A. v. 414 Midland Ave. Assocs., LLC, 78 A.D.3d at 750 (2d Dept. 2010)). Consequently, for the reasons stated herein, Plaintiff’s motion for summary judgment and his motion to dismiss and deny the defenses and counterclaims in Defendant’s answer is granted; Plaintiff’s motion to amend the complaint, which Defendant did not address in his opposition, is granted pursuant to CPLR §1024. The Court grants the portion of the motion that all non-appearing and non-answering defendants be deemed in default, which Defendant did not address in his opposition. Defendants cross-motion for Summary Judgment is denied. The matter is hereby referred to a Referee to determine the amount due and to ascertain whether the premises may be sold in Parcels. Accordingly, it is ORDERED that Summary Judgment is GRANTED to Plaintiff; and it is further ORDERED that Plaintiff’s motion to dismiss and deny the defenses and counterclaims in Defendant’s answer is GRANTED; and it is further ORDERED that Plaintiff’s motion to amend the complaint is GRANTED pursuant to CPLR §1024, and it is further ORDERED that that all non-appearing and non-answering defendants be deemed in default, and it is further ORDERED that Defendants cross-motion for Summary Judgment is denied, and it is further ORDERED that plaintiff’s proposed order (NYSCEF Doc # 68) appointing a Referee to compute shall be signed simultaneously herewith. Dated: January 11, 2023
