### JPMorgan Chase Bank, N.A. v Kocak 2024 NY Slip Op 33190(U) September 9, 2024 Supreme Court, New York County Docket Number: Index No. 850209/2022 Judge: Francis A. Kahn III 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.

### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03 :46 PM] INDEX NO. 850209/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/10/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. FRANCIS A. KAHN, Ill Justice ----------------------------------------------X

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff,

- V
- NACIYE KOCAK, THE BOARD OF MANAGERS OF 432 PARK CONDOMINIUM, JOHN DOE AND JANE DOE SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF PREMISES BEING FORECLOSED HEREIN Defendant. ------------------------------------------------------------------X PART

INDEX NO. MOTION DATE MOTION SEQ. NO. 850209/2022

001

DECISION + ORDER ON MOTION 32

The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43,44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57,61,62,63,64,65,66,67,68,69 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, the motion is determined as follows: In this action Plaintiffseeks to foreclose on a mortgage encumbering residential real property located at 432 ParkAvenue, Unit 81A, New York, New York. The mortgage, dated September 14, 2016, was given by DefendantNaciye Kocak ("Kocak") to PlaintiffJPMorgan Chase Bank, NA. The mortgage secures a loan with an original principal amount of$11,412,500.00 and is evidenced by a note the same date as the mortgage. Plaintiffcommenced this action alleging interalia that Defendant Kocak defaulted in repayment ofthe loan on or about November 1, 2021. Kocak answered and pled sixteen affirmative defenses, including lack ofstanding, failure to comply with RPAPL §§ 1304 and 1306 as well as failure to serve a contractual pre-foreclosure notice. Now, Plaintiffmoves for summary judgment against Kocak, to strike the answer and affirmative defenses, a defaultjudgment against the non-appearing Defendants, an order ofreference and to amend the caption. Kocak opposes the motion. In moving for summaryjudgment, Plaintiffwas required to establishprima facie entitlement to judgment as a matter oflawthough proofofthe mortgage, the note, and evidence ofDefendants' default in repayment (see 

### US Bank, NA. vJames, 180 AD3d 594 [1 st Dept 2020]; BankofNYvKnowles, 151 AD3d 596 [1 st Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 AD3d 577 [1 st Dept 2010]). Also, based on the affirmative defenses pied, Plaintiffwas required to demonstrate,primafacie, its standing (see eg Wells Fargo Bank, NA. v Tricario, 180 AD3d 848 [2nd Dept 2020]), its strict compliance with RPAPL §§1304 and 1306 (see 

### US Bank, NA vNathan, 173 AD3d 1112 [2d Dept 2019]; HSBC Bank USA, NA. v Bermudez, 175 AD3d 667,669 [2d Dept 2019]) as well as its substantial compliance with the requisites under paragraph 22 ofthe mortgage (see eg Wells Fargo Bank, NA. v McKenzie, 186 AD3d 1582, 1584 [2d Dept 2020]).

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### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03:46 

### P~ NYSCEF DOC. NO. 75 INDEX NO. 850209/2022 RECEIVED NYSCEF: 09/10/2024
Proofsupporting aprima facie case on a motion for summaryjudgmentmust be in admissible form (see CPLR §3212[b]; Tri-State LoanAcquisitionsIII, LLCv Litkowski, 172 AD3d 780 [1 st Dept 2019]). A plaintiffmay rely on evidence from persons with personal knowledge ofthe facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. BankNA. vMoulton, 179 AD3d 734, 738 [2d Dept 2020]). No particular set ofbusiness records mustbe proffered, as long as the admissibility requirements ofCPLR4518[a] are fulfilled and the records evince the facts for whichthey are relied upon (see eg Citigroup v Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 2017]). Plaintiffs motion was supported by an affidavit from Gary Brunton ("Brunton"), a Vice President-Document Execution for Plaintiff. Clemens avers that Plaintiffis the servicer ofthe loan, that his submission was based upon a reviewofPlaintiffsrecords and knowledge ofits record keeping practices. Brunton's affidavit laid a proper foundation for the admission ofthe records ofPlaintiffinto evidence under CPLR §4518 by sufficiently showingthatthe records Plaintiffrelied upon "reflect[ ed] a routine, regularly conductedbusiness activity, and that it be needed and relied on in the performance of functions ofthe business'', "thatthe record [was] made pursuant to establishedprocedures for the routine, habitual, systematic making ofsuch a record" and "that the record [was] made at or about the time ofthe event being recorded" (Bankof NY Mellon v Gordon, 171 AD3d 197, 204 [2d Dept 2019]; see also Bankof Am v Brannon, 156 AD3d 1 [1st Dept 2017]). Further, annexed to the motion were all the records referenced by Brunton (cfDeutsche BankNatl. Trust Co. v Kirschenbaum, 187 AD3d 569 [1 st Dept 2020]). As to the note and mortgage, these documents were referenced by Brunton and annexed to his affidavit (cf938St. NicholasAve. Lender LLCv 936-938 Cl(!Jcrest Hous. Dev. Fund Corp., 218 AD3d 417 [l51Dept 2023]). As such, proofofthe loan documents was established in the first instance. As to Defendants' default, it "is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge ofthe facts, or (3) other evidence in admissible form" (Deutsche BankNatl. Trust Co. vMcGann, 183 AD3d 700, 702 [2d Dept 2020]). Brunton's review ofthe attachedrecords evidencedmortgagor'sdefault inrepayment under the note (see egING RealEstate Fin. (USA) LLCv ParkAve. HotelAcquisition, LLC, 89 AD3d 506 [1 st Dept 2011]; see also Bankof NYv Knowles, supra; Fortress Credit Corp. v Hudson Yards, LLC, supra). As to standing in a foreclosure action, it is established in one ofthree ways: [l] direct privity between mortgagor and mortgagee, [2] physical possession ofthe note priorto commencement ofthe action that contains an indorsement in blank orbears a special indorsementpayable to the order ofthe plaintiffeither onits face orby allonge, and [3] assignment ofthe note to Plaintiffprior to commencement ofthe action (see eg Wells Fargo Bank, NA. v Tricario, 180 AD3d 848 [2d Dept 2020]; Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375 [3d Dept 2015]). Here, since Plaintiffwas lender when the note and mortgage were given, it was in direct privity with the mortgagor when the action was commenced and, therefore, unquestionably had standing (see generally Wilmington Sav. FundSocy., FSB vMatamoro, 200 AD3d 79, 90-91 [2d Dept 2021]). Plaintiffwas also required to proffer "sufficient evidence demonstrating the absence ofmaterial issues as to its strict compliance with RPAPL 1304" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2d Dept 2011]). As to the contractual pre-foreclosure notice, paragraph 22 ofthe mortgage, a ubiquitous provision in residential mortgages, provides that prior to acceleration ofthe note, the lender must send a notice containing the information specified in paragraph 22[b][1]

- [6] in the manner described in paragraph 15 ofthe mortgage. That sectionprovides that all notices must be in writing and

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### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03:46 P~ NYSCEF DOC. NO. 75 INDEX NO. 850209/2022 RECEIVED NYSCEF: 09/10/2024
"is considered given to [Mortgagor] when mailed by first class mail or when actually delivered to my notice address ifsentby other means ... The notice address is the address ofthe Property unless I give notice to Lender ofa different address". While RPAPL §1304 does not specify the proofnecessary to demonstrate compliance therewith, the Court ofAppeals has "has long recognized a party can establish that a notice or other document was sent through evidence ofactual mailing
... or ... by proofofa sender's routine business practice with respect to the creation, addressing, and mailing ofdocuments ofthat nature" (Cit BankNA. v Schiffman, 36 NY3d 550, 556 [2020][intemal citations omitted]). Proofofactual mailing may be shown with an affidavit ofmailing or domestic return receipts with attendant signatures (see eg US BankvZientek, 192 AD3d 1189, 1191 [2d Dept 2021]). Evidence ofa satisfactory office practice can raise a presumption that the required notice was sent and received by the projected addressee (CitBankNA. v Schfffman, supra). A practice giving rise to the presumption "mustbe geared so as to ensure the likelihood that [the] notice
... is always properly addressed and mailed" (Nassau Ins. Co. vMurray, 46 NY2d 828, 830 [1978]) and can be demonstrated via an affiant who explains "among otherthings, how the notices and envelopes were generated, posted and sealed, as well as howthe mail was transmitted to the postal service" (Cit BankNA. v Schiffman, supra). Prooffrom a person with "personal knowledge ofthe practices utilized by the [sender] at the time ofthe alleged mailing" is sufficient (PreferredMut. Ins. Co. v Donnelly, 22 NY3d 1169, 1170 [2014]; see also Citibank, NA. v Conti-Scheurer, 172 AD3d 17, 21 [2d Dept 2019][intemal quotation marks omitted]). An affidavit from the person who performed the mailing is not necessary (see Bassukv Steinberg, 58 NY2d 916, 919 [1983]). Regarding the mailing ofthese notices, Plaintiffsubmitted an affidavit from Karla Baxter ("Baxter") a Vice President-Document Execution ofPlaintiff. Baxter attested to their personal knowledge ofPlaintiffs standard mailing procedure, described the procedure in adequate detail and attached both Plaintiffsrecords and those from the United States Postal Service (see UnitedStates Bank Trust, NA. vMehl, 195 AD3d 1054 [2d Dept 2021]; Citimortgage, Inc. v Ustick, 188 AD3d 793, 794 [2d Dept 2020]). Accordingly, Plaintiffdemonstratedprimafacie its strict compliance with RPAPL §1304. Likewise, this evidence also demonstrated Plaintiffs substantial compliance with the contractual pre-foreclosure notice required by the mortgage. Compliance with RPAPL §1306 was shown by submitting a copy ofa proofoffiling statement from the New York State Department ofFinancial Services (see UnitedStates Bank Trust, NA. vMehl, supra at 1056) and RPAPL §1303 via the affidavit ofPlaintiffsprocess server (see HSBC Bank USA, NA. v Ozcan, 154 AD3d 822 [2d Dept 2017]). In opposition, Defendants' claim the motion is defective because a complete copy ofthe pleadings were not annexed thereto is without merit "asthe pleadings were filed electronically and thus were available to the parties and the court" (StudioA Showroom, LLC, v Yoon, 99 AD3d 632 [lst Dept 2012]; see also Galpern vAir Chefs, 

### L.L.C., 180 AD3d 50l [l st Dept 2020]). The argument that Plaintifffailed to demonstrate all the elements ofa cause ofaction for foreclosure is without merit. The affidavit and proffered business documents were all in admissible form. The argument that the endorsement in blank on the note raises material issues offact as to possession ofsame is also unavailing. "Attachment ofthe note to the complaint was sufficient to establish possession" (U.S. Bank NA. v Russell, 186 AD3d 1181 [151Dept 2020]). Under the circumstances "[t]here is simply no requirement that an entity
... must establish how it came into possession ofthat instrument" (JPMorgan Chase Bank, NA v Weinberger, 142 AD3d 643,645 [2d Dept 2016]). Plaintiffwas not obliged to produce the original note and mortgage to establish itsprima facie case in this context (see Aurora Loan Servs., LLCv Taylor, 25 NY3d 355,365 [2015]; Deutsche BankNatl. Trust Co. vAuguste, 185 AD3d 657, 659 [2d Dept 2020]).

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### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03:46 P~ NYSCEF DOC. NO. 75 INDEX NO. 850209/2022 RECEIVED NYSCEF: 09/10/2024 Regarding reformation ofthe mortgage, '"[w]here there is no mistake about the agreement and the only mistake alleged is inthe reduction ofthat agreementto writing, such mistake ofthe scrivener, or ofeither party, no matter how it occurred, may be corrected"' (Harris v Uhlendorf, 24 NY2d 463,467 [1969], citingBorn v Schrenkeisen, 110 NY 55, 59 [1888)). Therefore, '"[a] party seeking reformation ofa contract by reason ofmistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation"' (see Wells Fargo Bank, NA. v Zolotnitsky, 195 AD3d 659,661 [2d Dept 2021], citing Yu Han Young v Chiu, 49 AD3d 535, 536 [2d Dept 2008)). In support ofthe motion, Plaintiff demonstrate that the incorrect "metes and bounds" description was merely a "scrivener's error", and its reformation would not prejudice Defendant (see egBankof Am., NA. v Pennicooke, 186 AD3d 545 [2d Dept 2020)). Defendant is correct that "[a] cause ofaction seeking reformation ofan instrument on the ground ofmistake, including an alleged scrivener's error, is governed by the six-year statute oflimitations pursuant to CPLR 213 (6), which begins to run on the date the mistake was made" (Lopez v Lopez, 133 AD3d 722, 723 [2d Dept 2015)). In this case, the mortgage was executed on September 14, 2016, and this action was commenced on October 18, 2022, ostensibly 34 days late. However, Defendant overlooks that the running ofstatute oflimitations in this case was tolled for 228 days by operation of "Executive Order 202.8 and seven subsequent executive orders" which were issued in response to the COVID-19 pandemic (Trento 67, LLCv OneWest Bank, NA., 214 AD3d 689 [2d Dept 2024]; Wilmington Trust, NA v Fife, 212 AD3d 550 [151Dept 2023)). As such, Defendant's statute of limitations affirmative defense to the cause ofaction to reform the mortgage fails as a matter oflaw. In any event, an erroneous "metes and bounds" description attached to the mortgage does not bar foreclosure. The Court ofAppeals has noted that "[t]he language in which assessors can put land descriptions, and the actual range and possibility ofaccurate actual description are quite as infinite as the locations and lines ofdifferent land" (Goff v Shultis, 26 NY2d 240,244 [1970)). The issue to be attended is whetherthe "theland can be identified with reasonable certainty notwithstanding [any] errors" and "parol evidence may be introduced to identify the property intended and its exact boundaries" (Brookhaven v Dinos, 76 AD2d 555, 561 [2d Dept 1980], affd54 NY2d 911). In this case, the note and mortgage clearly stated the property subjectto the encumbrance was "432 Park Avenue, Unit 8lA, New York, NY 10022" and contains the correct block and lot designation. As to the branch ofPlaintiffs motion to dismiss all Defendants' affirmative defenses, CPLR §3211 [b] provides that "[a] party may move forjudgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home LoansServicing, L.P. v Vorobyov, 188 AD3d 803,805 [2d Dept 2020]; EmigrantBankv Myers, 147 AD3d 1027, 1028 [2d Dept 2017)). When evaluating such a motion, a "defendant is entitled to the benefit ofevery reasonable intendment ofits pleading, which is to be liberally construed. Ifthere is any doubt as to the availability ofa defense, it should not be dismissed" (Federici vMetropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008)). All the affirmative defenses are entirely conclusory and unsupported by any facts in the answer orby the papers submitted in opposition. As such, these affirmative defenses are nothing more than an unsubstantiated legal conclusion which is insufficiently pled as a matter oflaw (see Boardof Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 AD3d 569 [151Dept 2019]; see also Bosco Credit VTrust Series 2012-1 v. Johnson, 177 AD3d 561 [151Dept 2020]; 170 W Vil. Assoc. v G & E

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### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03:46 P~ NYSCEF DOC. NO. 75 INDEX NO. 850209/2022 RECEIVED NYSCEF: 09/10/2024 Realty, Inc., 56 AD3d 3T2 [1st Dept 2008]; see also Becher v Feller, 64 AD3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V& M Opt.. Inc., 51 AD3d 619 [2d Dept 2008]). Further, to the extent that no specific legal argument was proffered in support ofa particular affirmative defense, such defenses were abandoned (see U.S. BankNA. v Gonzalez, 172 AD3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Wells Fargo BankMinnesota, NA v Perez, 41 AD3d 590 [2d Dept 2007]). The branch ofPlaintiffsmotion for a defaultjudgment againstthe non-appearing parties is granted (see CPLR §3215; SRMOFII2012-1 Trust v Te/la, 139 AD3d 599, 600 [lst Dept 2016]). The branch ofPlaintiffs motion to amend the caption is granted 

### (see generally CPLR §3025; 

### JP Morgan Chase Bank, NA. v Laszio, 169 AD3d 885, 887 [2d Dept 2019]). Accordingly, it is ORDERED that Plaintiffs motion for summaryjudgment against the appearing parties and for a defaultjudgment against the non-appearing parties is granted; and it is further ORDERED that the affirmative defenses pledby all the appearing Defendants are dismissed; and it is further ORDERED that ClarkWhitsett, Esq. 66-05 Woodhaven Blvd., Rego Park, New York 11374

- 718-850-0003 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount due to Plaintiffand to examine whether the property identified in the notice ofpendency can be sold in parcels; and it is further ORDERED that in the discretion ofthe Referee, a hearing may be held, and testimony taken; and it is further ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 ofthe Rules ofthe ChiefJudge (22 NYCRR Part 36), including, but not limited to §36.2 (c) ("Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon compensation"), and, ifthe Referee is disqualified from receiving an appointment pursuant to the provisions ofthat Rule, the Referee shall immediately notify the Appointing Judge; and it is further ORDERED that, pursuant to CPLR 8003(a), and in the discretion ofthe court, a fee of$350 shall be paid to the Referee for the computation ofthe amount due and upon the filing ofhis report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); and it is further ORDERED that the Referee is prohibited from accepting or retaining any funds for himselfor paying funds to himselfwithout compliance with Part 36 ofthe Rules ofthe ChiefAdministrative Judge; and it is further ORDERED that ifthe Referee holds a hearing, the Referee may seek additional compensation at the Referee's usual and customary hourly rate; and it is further

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### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03:46 P~ NYSCEF DOC. NO. 75 INDEX NO. 850209/2022 RECEIVED NYSCEF: 09/10/2024
ORDERED that Plaintiffshall forward all necessary documents to the Referee and to Defendants who have appeared inthis case within 30 days ofthe date ofthis order and shallpromptlyrespond to every inquiry made by the referee (promptly means within two business days); and it is further ORDERED that ifDefendant(s) have objections, they must submit them to the referee within 14 days ofthe mailing ofplaintiff's submissions; and include these objections to the Court ifopposing the motion for ajudgment offoreclosure and sale; and it is further ORDERED that failure to submit objections to the referee may be deemed a waiver ofobjections before the Court on an application for ajudgment offoreclosure and sale; and it is further ORDERED that the mortgage and any necessary loan documents related to such Mortgage be, and the same hereby are, reformed by substituting therein the intended Legal Description ofthe mortgagedpremises, which is the correctdescription, inplace ofthe mortgage premises description which is erroneous (a copy ofthe Intended Mortgaged premises is attached); and it is further ORDERED that the New York County Register for the City ofNew York note in the original recorded mortgage recorded in the Register for the City ofNew York on September 27, 2016, in CRFN 2016000338172, that the legal description is hereby reformed; and it is further ORDERED, that the caption ofthis action be amended by substituting City ofNew York Transit Adjudication Bureau sued herein as "John Doe" and "Jane Doe" without prejudice to the proceedings heretofore had herein; and it is further ORDERED the caption is amended as follows: SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK 

### ---------------------------------------------------------------------X JPMorgan Chase Bank, National Association, Plaintiff,-againstNaciye Kocak a/k/a N. Kocak; Board ofManagers of432 Park Condominium; City ofNew York Transit Adjudication Bureau, Defendants.

--------------------------------------------------------------------X and it is further, ORDERED that Plaintiffmust bring a motion for ajudgment offoreclosure and sale within 45 days ofreceipt ofthe referee's report; and it is further ORDERED that ifPlaintifffails to meet these deadlines, then the Court may suasponte vacate this order and direct Plaintiffto move again for an order ofreference and the Court may suasponte toll interest depending on whether the delays are due to Plaintiff's failure to move this litigation forward; and it further

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### [FILED: NEW YORK COUNTY CLERK 09/10/2024 03:46 P~ NYSCEF DOC. NO. 75 INDEX NO. 850209/2022 RECEIVED NYSCEF: 09/10/2024
ORDERED that counsel for Plaintiffshall serve a copy ofthis order with notice ofentry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflectthe parties being removed pursuant hereto; and it is further ORDERED that such service upon the County Clerk and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse andCounty ClerkProceduresfor ElectronicallyFiled Cases (accessible at the "E-Filing" page on the court's website at the address (www.nycourts.gov/supctmanh)]; and it is further ORDERED that Plaintiffshall serve a copy ofthis Orderwith notice ofentry on all parties and persons entitled to notice, including the Referee appointed herein. All parties are to appear for a virtual conference viaMicrosoft Teams onJanuary 15, 2025, at 11:00 a.m. 

### Ifa motion forjudgment offoreclosure and sale has been filed Plaintiffmay contact the Part Clerk (SFC-Part32-Clerk@nycourts.gov) in writing to request that the conference be cancelled. Ifa motion has not been made, then a conference is required to explore the reasons for the delay. Mortgage Servicer: JPMorgan Chase Bank, NA

-- Phone: (800) 848-9136.

9/9/2024

DATE CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 

### FANC1s K~H~, 111,

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## A. 

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### J.S. . GRANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT**□** REFERENCE

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