Opinion
No. 1133–12.
2012-09-11
FLUSHING PREFERRED FUNDING CORP., Plaintiff, v. PATRICOLA REALTY CORP., New York State Department Of Taxation And Finance, Clare Taylor, Jennifer Taylor, Danielle Taylor, 72 Walt Whitman Road Associates, LLC, 560 Cleaners, Inc., Joseph Pennestri, Lefrench Cleaners, Inc., Seung Kyu Koh, “John Doe No. 1” to “John Doe No. XXX” inclusive, the last thirty names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
Jaspan Schlesinger, LLP Garden City, NY, for Plaintiff. Alexander M. Fear, P.C. New Rochelle, NY, for Defendants, Patricola Realty & Taylors.
Jaspan Schlesinger, LLP Garden City, NY, for Plaintiff. Alexander M. Fear, P.C. New Rochelle, NY, for Defendants, Patricola Realty & Taylors.
Michael L. McCarthy, P.C., Huntington, NY, for Defendants, 572 Walt Whitman Rd.
Alan Gitter, Esq., Hauppauge, NY, for Defendant, NYS Dept. of Taxation.
THOMAS F. WHELAN, J.
ORDERED that this motion (# 002) by the plaintiff for accelerated judgments against the defendants, the appointment of a referee to compute and other incidental relief is considered under CPLR 3212, 3215 and RPAPL 1321 and is granted; and it is further
ORDERED that the cross motion (# 003) by defendants, Patricola Realty Corp., Clare Taylor, Jennifer Taylor and Danielle Taylor, for an order granting them leave to serve an amended answer and compelling the plaintiff to disclose documents, is considered under CPLR 3025 and 3126 and is denied.
The plaintiff commenced this action to foreclose a December 19, 2006 mortgage given by defendant, Patricola Realty Corp. [hereinafter “Patricola” or “mortgagor”], to secure a promissory note of the same date in the amount of $1,450,000.00 executed by defendant, Clare Taylor [hereinafter “CTaylor” or “borrower”] in favor of Flushing Savings Bank, FSB. The December 19, 2006 note was further secured by the written unconditional guarantees of payment executed by defendants, Jennifer Taylor and Daniel Taylor [hereinafter “guarantors”]. The subject mortgage, in which the mortgagor, Patricola promised to pay the debt a provided in the note executed by defendant CTaylor, was recorded in the office of the County Clerk on January 8, 2007. The original lender/mortgagee, the parent company of the plaintiff, assigned the promissory note secured by the subject mortgage and such mortgage to the plaintiff by a written assignment bearing a corporate acknowledgment dated January 2, 2008. That assignment was recorded in the office of the Suffolk County Clerk on February 7, 2008.
The mortgaged premises consist of commercial property situated on Walt Whitman Road, Melville, New York which houses several rental units of commercial space. In its complaint, the plaintiff alleges that the mortgagor defendant defaulted in making the payment due on September 1, 2011 and such default has not been cured. The plaintiff thereafter elected to accelerate the mortgage debt, the principal amount of which was $1,371,504.21 as of the date of complaint. The plaintiff seeks recovery of such amount together with late fees, interest and reasonable counsel fees upon the public sale of the subject premises, and a deficiency of judgment, if there be any following such sale, against the obligor defendants, Ctaylor, Paticola, Jennifer Taylor and Danielle Taylor.
The plaintiff commenced this action to foreclose the lien of its mortgage in January of 2012 and secured the appointment of a receiver by order of this court dated January 31, 2012. Defendant, 572 Walt Whitman Road Associates, LLC, s/h/a/ 72 Walt Whitman Road Associates, LLC, an occupant of the premises, appeared herein by answer dated January 19, 2012. The obligor defendants appeared herein by an undated answer bearing a verification by the corporate defendant dated April 16, 2011. Therein, the obligor defendants assert nine affirmative defenses to the plaintiff's pleaded demands for relief.
By the instant motion, the plaintiff moves for an order: (1) amending the captions of this action to reflect the proper name of answering defendant, 572 Walt Whitman Associates, LLC, s/h/a 72 Walt Whitman Associates, LLC; 2) awarding summary judgment against the answering defendants; (2) fixing the defaults in answering of the non-answering defendants; (3) substituting one or more occupants found at the premises for unknowns named in the caption and deleting as party defendants the remaining unknown defendants; and (4) appointing a referee to compute amounts due under the subject mortgage.
The court is without receipt of opposition from answering defendant, 542 Walt Whitman Road Associates, LLC. However, the obligor defendants oppose the plaintiff's motion-in-chief by cross moving papers (# 003) in which they seek an order granting them leave to serve an amended answer and an order compelling the plaintiff to produce the documents demanded in a document demand notice dated April 16, 2012. For the reasons stated below, the cross motion is denied while the plaintiff's motion-in-chief is granted.
It is well settled law that a mortgagee establishes a prima facie case for foreclosure of a mortgage lien by presenting the subject mortgage, the unpaid note and due evidence of a default under the terms thereof ( seeCPLR 3212; RPAPL § 1321; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012]; Archer Capital Fund, L.P. v. Eagle Realty, LLC, 95 AD3d 799, 942 N.Y.S.2d 902 [2d Dept 2012]; Washington Mut. Bank v. Valencia, 92 AD3d 774, 939 N.Y.S.2d 73 [2d Dept 2012]; Swedbank, AB v. Hale Ave. Borrower, LLC., 89 AD3d 922, 932 N.Y.S.2d 540 [2d Dept 2011]; Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC, 70 AD3d 882, 895 N.Y.S.2d 199 [2d Dept 2011]; Countrywide Home Loans v. Delphonse, 64 AD3d 624, 883 N.Y.S.2d 135 [2d Dept 2009] ). Claims for a deficiency judgment based upon written guarantees of payment are similarly established, prima facie, by the production of the underlying agreements and evidence of a default on the part of a guarantor defendant ( see Archer Capital Fund, L.P. v. GEL, LLC, 95 AD3d 800, 944 N.Y.S.2d 179 [2d Dept 2012] ).
Here, the moving papers established the plaintiff's prima facie entitlement to summary judgment on its complaint to the extent it asserts claims against the answering defendants, as it included copies of the note, mortgage and written guarantees as well as due evidence of defaults in payment by the obligor defendants. It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in the answers, if any, or others available to such defendants ( see Citibank, NA v. Van Brunt Prop., LLC, 95 AD3d 1158, 945 N.Y.2d 330 [2d Dept 2012]; Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v. South Rd. Assocs., 74 AD3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010]; Washington Mut. Bank v. O'Connor, 63 AD3d 832, 880 N.Y.S.2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, NA v. Agnello, 62 AD3d 662, 878 N.Y.S.2d 397 [2d Dept 2009]; Household Fin. Realty Corp. of New York v. Winn, 19 AD3d 545, 796 N.Y.S.2d 533 [2d Dept 2005] ).
No such question of fact was raised by answering defendant, 542 Walt Whitman Associates, LLC, as the court is without receipt of opposing papers from such defendant ( see Flagstar Bank v. Bellafiore, 94 AD3d 1044,supra ). Summary judgment is thus awarded to the plaintiff on its complaint against defendant 542 Walt Whitman Associates, LLC.
The opposition submitted by the obligor defendants is set forth in their cross moving papers. Of the nine affirmative defenses asserted in their joint answer, only the Fourth and Eighth, which challenge the plaintiff's standing, are asserted in opposition to the plaintiff's motion. Also asserted in opposition is the procedural defense afforded by CPLR 3212(f), which rests upon claims that the plaintiff's motion is premature due to the absence of disclosure. Finally, a chronicle of the defendants' family ownership of the premises and a recitation of recent familial circumstances, including a failed attempt to secure a forbearance agreement from the plaintiff by a former attorney retained by said defendants, are asserted as grounds for a denial of the plaintiff's motion in the affidavit of defendant guarantor, Jennifer Taylor. The court finds, however, for the reasons outlined below, that none of the submissions in opposition raise any genuine issues of fact necessary to rebut the plaintiff's prima facie showing of its entitlement to the summary judgment demanded by it.
As indicated above, a claim of foreclosure sale is made by the plaintiff's establishment of the existence of a mortgage loan by production of the note and mortgage signed by the defendant borrower and evidence of a default in payment or in other material terms of the note and/or mortgage on the part of the borrower ( see Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793,supra; Archer Capital Fund, L.P. v. Eagle Realty, LLC, 95 AD3d 799,supra; Washington Mut. Bank v. Valencia, 92 AD3d 774,supra; Swedbank, AB v. Hale Ave. Borrower, LLC., 89 AD3d 922,supra; Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC, 70 AD.3d 882,supra; Countrywide Home Loans v. Delphonse, 64 AD3d 624,supra ). Where these elements are established, the plaintiff will be credited with making a prima facie case for foreclosure and sale.
In contrast, the standing of a plaintiff in a mortgage foreclosure action is measured by markedly different elements, namely, its ownership, holder status or possession of the note and mortgage at the time of the commencement of the action ( see U.S. Bank of N.Y. v. Silverberg, 86 AD3d 274, 279, 926 N.Y.S.2d 532 [2d Dept 2011]; Bank, NA v. Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 [2d Dept 2009]; Wells Fargo Bank, NA v. Marchione, 69 AD3d 204, 887 N.Y.S.2d 615 [2d Dept 2009] ). In addition, mortgage loan servicers and other agents of the owner, holder or possesor of the note and mortgage at the time of commencement possess standing to prosecute claims for foreclosure and sale ( seeRPAPL § 1304[1] [ authorizing lenders, assignees or mortgage loan servicers to commence mortgage foreclosure actions ]; RPAPL § 1302[1] [ requiring plaintiffs in some foreclosure actions to allege that it is the owner and holder of the note and mortgage or has been delegated the authority to prosecute action by such ]; see also Wells Fargo Bank, NA v. Edwards, 95 AD3d 692, 945 N.Y.S.2d 44 [1st Dept 2012] [ action properly maintained in plaintiff's capacity as trustee under a pooling and servicing agreement that predated the commencement of the action ]; CWCapital Asset Mgt. v. Charney–FPG 114 41st St., LLC., 84 AD3d 506, 923 N.Y.S.2d 453 [1st Dept 2011] [ action properly maintained in plaintiff's capacity as servicing agent ]; Fairbanks Capital Corp. v. Nagel, 289 A.D.2d 99, 735 N.Y.S.2d 13 [1st Dept 2001] [ delegation of mortgage to service agent by mortgagee was sufficient to give service agent standing to sue ]; Deutsche Bank Natl. Trust Co. v. Pietranico, 33 Misc.3d 528, 928 N.Y.S.2d 818 [Sup.Ct., Suffolk County, 2011] [ agent and nominee of original lender had standing to prosecute action ]; see also U.S. Bank, NA v. Flynn, 27 Misc.3d 802, 806, 897 N.Y.S.2d 855 [Sup.Ct., Suffolk County 2010] ). Since the ownership, holder status or possessory interest of the plaintiff or its duly delegated agent bears solely upon the issue of standing, and not upon the sufficiency of the claim, the pleading and proving of such interest is not an element of the plaintiff's claim for foreclosure and sale ( see Wells Fargo Bank Minn, NA v. Mastropaolo, 42 AD3d 239, 837 N.Y.S.2d 247 [2d Dept 2008]; cf., U.S. Bank Nat. Assn. v. D'allarmo, 94 AD3d 746, 942 N.Y.S.2d 122 [2d Dept 2012] ).
The foregoing rule is the result of the nature of the issue of standing under principles of New York jurisprudence. It has recently been established that the issue of a plaintiff's standing is not an issue concerning subject matter jurisdiction, but instead, is an affirmative defense in bar which may be waived by a defendant possessed of such defense ( see Wells Fargo Bank Minn, NA v. Mastropaolo, 42 AD3d 239,supra; see also HSBC Bank USA, NA v. Schwartz, 88 AD3d 961, 931 N.Y.S.2d 528 [2d Dept 2011]; Citi Mtge., Inc. v. Rosenthal, 88 AD3d 759, 931 N.Y.S.2d 638 [2d Dept 2011]; Wells Fargo Bank Minn., NA v. Perez, 70 AD3d 817, 817–818, 894 N.Y.S.2d 509 [2010];leave to appeal denied,14 NY3d 710, 903 N.Y.S.2d 769 [2010];cert. denied,131 S.Ct. 648 [2010] ). A plaintiff is thus under no obligation to plead and prove its standing in the first instance. It is only where standing is put in issue by a defendant's pre-answer motion or by an affirmative defense set forth in an answer must the plaintiff prove its standing to be entitled to relief from the court ( see Wells Fargo Bank Minn, NA v. Mastropaolo, 42 AD3d 239,supra, citing TPZ Corp. v. Dabbs, 25 AD3d 787, 808 N.Y.S.2d 746 [2d Dept 2006] ).
A principal plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note “either by physical delivery or execution of a written assignment prior to the commencement of the action” (Citimortgage, Inc. v. Stosel, 89 AD3d 887, 934 N.Y.S.2d 182 [2d Dept 2011], quoting Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 108, 923 N.Y.S.2d 609 [2d Dept 2011]; see Citibank, NA v. Swiatkowski, 98 AD3d 555, 949 N.Y.S.2d 635, [2d Dept 2012] ). “Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity” (U.S. Bank, NA v. Collymore, 68 AD3d at 754,supra ). However, a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation and vest standing in the plaintiff, since the mortgage passes with the debt that is evidenced by the note as an inseparable incident thereto ( see U.S. Bank Natl. Assn. v. Cange, 96 AD3d 825, 947 N.Y.S.2d 522 [2d Dept 2012]; GRP Loan, LLC v. Taylor, 95 AD3d 1172, 945 N.Y.S.2d 336 [2d Dept 2012]; Deutsche Bank Natl. Trust Co. v. Rivas, 95 AD3d 1061, 945 N.Y.S.2d 328 [2d Dept 2012]; US Bank, Natl. Assn. v. Sharif, 89 AD3d 723, 933 N.Y.S.2d 293 [2d Dept 2011]; U.S. Bank, NA v. Collymore, 68 AD3d at 754,supra; Deutsche Bank Natl. Trust Co. v. Pietranico, 33 Misc.3d 528,supra ).
Here, the plaintiff's moving papers included proof that the December 19, 2006 note secured by the subject mortgage was physically delivered to the plaintiff by the original lender on February 26, 2007. The record also includes evidence that the underlying note dated December 19, 2006, executed by the borrower, Clare Taylor, together with the mortgage given as security for said note by corporate defendant, Patricola Realty Corp., was assigned to the plaintiff in an undated assignment containing a sworn acknowledgment by a notary public on January 2, 2008, of such assignment's execution by an agent of the original lender/mortgagee. Under the above cited authorities, this written assignment of the note was “sufficient to transfer the obligation and vest standing in the plaintiff, since the mortgage passes with the debt that is evidenced by the note as an inseparable incident thereto” (US Bank Natl. Assn. v. Cange, 96 AD3d 825,supra; see GRP Loan, LLC v. Taylor, 95 AD3d 1172,supra; Deutsche Bank Natl. Trust Co. v. Rivas, 95 AD3d 1061,supra ). Because “[n]o special form or language is necessary to effect an assignment as long as the language shows the intention of the owner of a right to transfer it' “ (Bank of New York v. Silverberg, 86 AD3d 274,supra, quoting Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612, 612, 788 N.Y.S.2d 403 [2d Dept 2004]; quoting Tawil v. Finkelstein Bruckman Wohl Most & Rothman, 223 A.D.2d 52, 55, 646 N.Y.S.2d 691 [1st Dept 1996] ), the assignment relied upon by the plaintiff here, to establish its ownership interest in the note and mortgage, was sufficient to establish its standing to maintain this action ( see CSFB 2004–C3 Bronx Apts. LLC v. Sinckler, Inc., 96 AD3d 680, 949 N.Y.S.2d 21 [1st Dept 2012]; GRP Loan, LLC v. Taylor, 95 AD3d 1172,supra ).
The obligor defendants' challenges to the plaintiff's standing rest in part upon claims that irregularities appearing on the face of the assignment render it invalid or, at the very least, present issue of fact as to its validity which warrant a denial of the plaintiff's motion. Specifically, the obligor defendants' claims that the assignment is conflicted as to the date of its execution, since the body thereof recites that it was executed “as of February 26, 2007” while the acknowledgment was taken by the notary on January 2, 2008. However, the court finds these contentions to be without merit. While “a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment” (Wells Fargo Bank, NA v.. Marchione, 69 AD3d 204,supra ), the assignment at issue here bears an acknowledgment date of January 2, 2008, some four years prior to the commencement of this action. The fact that said assignment recites that it was executed “as of the 26th day of February, 2007” is of no consequence, since the notarial acknowledgment establishes that the individual who executed the assignment on behalf of the original lender appeared before the notary on January 2, 2008 and, at such appearance, acknowledged to the notary that she, the signatory, had executed the assignment in her capacity as authorized signatory.
The obligor defendants' challenges to the authority of the individual (Marna E. Bernstein) who executed the assignment on behalf of the original lender are equally unavailing. These challenges rest upon claims that Ms. Bernstein's recital of her capacity as an “authorized signatory” following her signature is insufficient and the plaintiff's failure to provide a copy of a power of attorney in favor of Ms. Bernstein warrants a denial of the plaintiff's motion. The obligor defendants failed, however, to establish that the validity of a transaction requiring a signature of an agent authorized under a power of attorney requires the attorney-in-fact to sign in such capacity and its citation to case authorities wherein transactions on behalf of principals by agents expressly designated in contracts to so act are inapposite ( see Siegel v. Kentucky Fried Chicken, 108 A.D.2d 218, 488 N.Y.S.2d 744 [2d Dept 1985] ). Instead, it is well established that an agent may bind the principal simply by disclosing the agency relationship and need not disclose his or authority under the terms of the power of attorney ( seeGOL § 5–1107; NY JUR Agency § 213). While there is statutory authority mandating that corporate acknowledgments must be made by corporate officers or attorneys-in-fact (see RPL 309), the acknowledgment itself need not recite the signatories' authority as attorney-in-fact, only that his or her capacity was expressed to the notary who swore to the acknowledgment ( seeRPL 309[3]; RPL 309–a [1] ). The obligor defendants thus failed to establish that a deficiency, if any, in the acknowledgment of the written assignment of the note and mortgage renders such assignment of the note invalid, since an assignment of the note, not being a conveyance, need not be in the form required for recording ( cf.,RPAPL 1353 requiring recording of mortgage and any assignment prior to referee's conveyance to purchaser).
In any event, in response the to the defendants' opposition, the plaintiff adduced due proof that Ms. Bernstein's capacity as attorney-in-fact for the original lender was in place at the time of the January 2, 2008 acknowledgment as the same had been conferred in a power of attorney dated June 19, 2007. While the defense counsel claims that the reply papers containing the affidavit of the original lender's Vice President, who executed the June 19, 2007 power of attorney attached to said affidavit should not be considered by the court, the court disagrees. Evidence submitted by a moving party in reply papers that is offered in direct response to allegations raised by the an adversary's opposition papers may properly be considered by the court ( see Wells Fargo Bank, NA v. Marchione, 69 AD3d 204,supra; Conte v. Frelen Assoc., LLC, 51 AD3d 620, 858 N.Y.S.2d 258, [2d Dept 2008]; Matter of Kennelly v. Mobius Realty Holdings LLC, 33 AD3d 380, 382, 822 N.Y.S.2d 264 [1st Dept 2006] ). A review of the record here reveals that the plaintiff's submissions in reply were offered in response to the arguments presented in opposing papers submitted by the obligor defendants wherein challenged the authority of the assignor's agent as part of their attempt to raise the standing issue to defeat the plaintiff's motion-in-chief. Finally, the obligor defendants did not challenge the plaintiff's assertion that the note had been physically transferred to it on February 26, 2007.
The opposing papers also failed to demonstrate that the instant motion by the plaintiff is premature due to the obligor defendants' inability to state facts essential to opposition as contemplated by CPLR 3212[f]. To defeat or delay determination of a summary judgment motion on such grounds, the claimant must demonstrate that additional discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs ( see Seaway Capital Corp. v. 500 Sterling Realty Corp., 94 AD3d 856, 941 N.Y.S.2d 871 [2d Dept 2012]; JP Morgan Chase Bank, NA v. Agnello, 62 AD3d 662,supra ). A review of the record reveals that no such showing was made by the obligor defendants, as they relied upon speculative expressions of hope that further discovery would yield evidence of a triable issue of fact which is not a basis for denying summary judgment pursuant to CPLR 3212(f).
The cross motion by the obligor defendants wherein they seek leave to serve an amended answer in the form of the one attached to their cross moving papers is considered under CPLR 3025(b) and is denied. The standard for determining a party's right for leave of the court to amend its pleading is simply whether the amendment is palpably insufficient or patently devoid of merit ( see Koenig v. Action Target, Inc., 76 AD3d 997, 907 N.Y.S.2d 692 [2d Dept 2010]; Lucido v. Mancuso, 49 AD3d 220, 851 N.Y.S.2d 238 [2d Dept 2008] ). If it is neither, leave to amend should be granted unless an adverse party demonstrates that surprise or prejudice will directly result from the amendment ( see Maldonado v. Newport Gardens, Inc., 91AD3d 731, 937 N.Y.S.2d 260 [2d Dept 2012]; Koenig v. Action Target, Inc., 76 AD3d 997,supra; Yemini v. Goldberg, 46 AD3d 806, 848 N.Y.S.2d 676 [2d Dept 2007] ).
Here, the proposed amendment contains no new defenses, but instead seeks to further clarify the defendants' position that “the plaintiff lacks standing because the assignment was improperly executed”. These claims are, however, patently devoid of merit for the reasons set forth above, including the following: 1) that none of the perceived deficiencies in the assignment invalidated the transfer of the note by the original lender/mortgagee to the plaintiff, which assignment effected a transfer of the mortgage by operation of law, such that any deficiencies in the form of the assignment as it relates to an assignment of the mortgage itself; 2) and the plaintiff's establishment that the agent of the assignor had the capacity on the date of the acknowledgment to assign the note and mortgage as the attorney-in fact for the original lender/mortgagee under an assignment in recordable form. In addition, where, as here, arguments regarding purported irregularities with assignments are rife with speculation and innuendo and thus appear to be aimed obscuring the real issue in the case, namely, the obligor defendants' long time failure to pay on the note securing the mortgage, such arguments may be properly rejected as unmeritorious ( see Hypo Holdings Inc. v. Chalasani, 280 A.D.2d 386, 721 N.Y.S.2d 35 [1st Dept 2001] ). The cross motion for leave to amend the answer of the obligor defendants is thus denied.
The court thus finds that the plaintiff is entitled to summary judgment on its complaint and to the dismissal of the affirmative defenses set forth in the joint answer of the obligor defendants. Accordingly, those portions of this motion wherein the plaintiff seeks such relief are granted.
Those portions of the plaintiff's motion wherein it seeks an order amending the captions of this action to reflect the proper name of defendant, 572 Walt Whitman Associates, LLC from the incorrect named set forth in the caption is considered under CPLR 305 and 3025 and is granted. There is no jurisdictional impediment to the caption amendment sought as the misnomer of this defendant was cured by its appearance herein by an answer containing no jurisdictional defenses. In any event, the misnomer appears to be of the type which is curable by a caption amendment of the type sought by the plaintiff on its motion-in-chief ( see Holster v. Ross, 45 AD3d 640, 846 N.Y.S.2d 26 [2d Dept 2007]; Ober v. Rye Town Hilton. 159 A.D.2d 16, 856 N.Y.S.2d 199 [2d Dept 1990]; cf., Smith v.. Garo Enter., Inc., 60 AD3d 751, 875 N.Y.S.2d 167 [2d Dept 2009] ). Also granted are those portions of the instant motion wherein the plaintiff seeks an order identifying and/or substituting Nelson, Pope and Voorhis, LLC in the place of unknown “John Doe # 1” and dropping as party defendants the remaining unknown defendants listed in the caption and an amendment of the caption to reflect same is granted.
The moving papers further established the default in answering on the part of the newly identified non-answering defendants including the newly identified defendant each of whom failed to serve answers to the plaintiff's complaint. Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the sole answering defendant and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage ( seeRPAPL § 1321; Bank of East Asia, Ltd. v. Smith, 201 A.D.2d 522, 607 N.Y.S.2d 431 [2d Dept 1994]; Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 [3d Dept 1996]; Perla v. Real Prop. Holdings, LLC, 23 Misc.3d 697, 874 N.Y.S.2d 873 [Sup Ct. Kings County 2009]; HSBC Mtge. Serv., Inc. v. Alphonso, 16 Misc.3d (A), 2007 WL 2429711 [Kings County Sup.Ct.2007] ).
The proposed order appointing a referee to compute, as modified by the court, has been signed simultaneously herewith.