Emigrant Savings Bank-Brooklyn/Queens v. Makinano

In an action to foreclose a mortgage, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Flug, J.), entered September 6, 2013, and (2), as limited by its brief, from so much of an order of the same court entered January 10, 2014, as denied its motion for summary judgment on the complaint, for an order of reference, in effect, to dismiss the affirmative defenses of the defendant Bonifacio Makinano, and for leave to amend the caption.

Ordered that the appeal from the order entered September 6, 2013, is dismissed; and it is further,

Ordered that the order entered January 10, 2014, is reversed insofar as appealed from, and the plaintiffs motion for sum

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the order entered September 6, 2013, must be dismissed, as that order was superseded by the order entered January 10, 2014.

In May 2012, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Bonifacio Makinano. Also in May 2012, the plaintiffs counsel filed an attorney affirmation in accordance with Administrative Order of the Chief Administrative Judge of the Courts AO/548/10, which was issued by Chief Administrative Judge of the Courts on October 20, 2010. Administrative Order 548/10, which has since been replaced by Administrative Order 431/11 (hereinafter the Administrative Order), requires the plaintiffs counsel in a residential mortgage foreclosure action to file with the court an affirmation confirming the accuracy of the plaintiffs pleadings (see Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225 , 1226 [2014]).

In June 2013, the plaintiff moved for summary judgment on the complaint, for an order of reference, in effect, to dismiss Makinano’s affirmative defenses, and for leave to amend the caption. In support of its motion, the plaintiff submitted, inter alia, an affidavit from an employee of the plaintiff. In an order entered January 10, 2014, the Supreme Court, among other things, denied the plaintiffs motion on the ground that the plaintiffs counsel had not submitted an attorney affirmation pursuant to the Administrative Order confirming the accuracy of the affidavit of the plaintiffs employee which the plaintiff had submitted in support of its motion. This was error.

Where, as here, a plaintiff commences a residential mortgage foreclosure action after the Administrative Order’s effective date, the attorney affirmation must be filed at the time of the filing of the request for judicial intervention (see Administrative Order). As the plaintiff had previously filed the attorney affirmation, the plaintiff was not required by the Administrative Order to submit an additional attorney affirmation pursuant to the Administrative Order confirming the accuracy of the affidavit submitted in support of its motion.

Further, the Supreme Court erred in denying the plaintiffs motion. The plaintiff met its prima facie burden of demonstrating its entitlement to summary judgment on the complaint by submitting, among other things, a written assignment from

In addition, the Supreme Court should have granted those branches of the plaintiffs motion which were for an order of reference (see RPAPL 1321; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566 , 568 [2014]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]), and to amend the caption (see CPLR 1024; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d at 568 ; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]).

Accordingly, the Supreme Court should have granted the plaintiffs motion for summary judgment on the complaint, for an order of reference, in effect, to dismiss Makinano’s affirmative defenses, and for leave to amend the caption.

Leventhal, J.P., Hall, Maltese and Barros, JJ., concur.