The following e-filed documents, listed by NYSCEF document number (Motion 003) 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 106, 107, 110, 143 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, the motion is determined as follows: The within action is to foreclose on a consolidated, amended and restated mortgage encumbering a parcel of commercial real property known as Commercial Unit No. A, 510 Avenue of the Americas a/k/a 65/75 West 13th Street a/k/a 62/66 West 14th Street a/k/a 510/526 Avenue of the Americas a/k/a 65 West 13th Street, New York, New York, New York. The mortgage was given by Defendant 510 Borrower LLC (“Borrower”) to non-party Manufacturers and Traders Trust Company (“Trust”) to secure a loan with an original principal amount of $49,000,000.00 which is memorialized by a consolidated, amended and restated promissory note. The note and mortgage are both dated November 7, 2016 and were executed by Defendant Arline Vogel (“Vogel”) as Managing Member of non-party M510 LLC, the Manager of Borrower. Concomitantly with these documents, Defendants Vogel and Clinton Smullyan, Jr. (“Smullyan”) executed a guarantee of the indebtedness. On May 21, 2020, Borrower executed a deferment agreement with non-party M&T Bank (“M&T”), the apparent assignee of the note and mortgage, which suspended installment payments under the note through July 2020. In that agreement, Defendants acknowledged the indebtedness as well as their obligation to repay the debt. Defendants further assented to “relinquish any and all rights of setoff, counterclaims and defenses”. On July 23, 2000, the parties executed another deferment agreement which delayed installment payments until October 2020. Plaintiff commenced this action alleging inter alia Defendants defaulted in repayment under the note. Defendants Borrower, Vogel, Smullyan and Mosbacher Properties Group, LLC (“MPG”) answered jointly and pled six [6] affirmative defenses. Now, Plaintiff moves for inter alia summary judgment against Borrower, Vogel, Smullyan and Mosbacher, for a default judgment against the non-appearing parties, striking the appearing Defendants’ affirmative defenses, appointing a referee to compute and to amend the caption. Defendants Borrower, Vogel, Smullyan and Mosbacher oppose the motion. In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants’ default in repayment (see eg U.S. Bank, N.A. v. James, 180 AD3d 594 [1st Dept 2020]; Bank of NY v. Knowles, 151 AD3d 596 [1st Dept 2017]; Fortress Credit Corp. v. Hudson Yards, LLC, 78 AD3d 577 [1st Dept 2010]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v. Litkowski, 172 AD3d 780 [1st Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v. Moulton, 179 AD3d 734, 738 [2d Dept 2020]). No particular set of business records must be proffered, as long as the admissibility requirements of CPLR 4518[a] are fulfilled and the records evince the facts for which they are relied upon (see eg Citigroup v. Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 2017]). Plaintiff’s motion was supported with an affidavit from James R. Pomeranz (“Pomeranz”), a Senior Vice President of Plaintiff. Pomeranz stated that his affidavit was based upon both his personal knowledge and examination of business records. However, he does not indicate what information is based on personal observation or derived from records (see Bank of N.Y. Mellon v. Gordon, 171 AD3d 197, 206 [2d Dept 2019] ["a witness may always testify as to matters which are within his or her personal knowledge through personal observation"]). To the extent Pomeranz’s knowledge is based upon a review of the books and records, his affidavit laid a proper foundation for the admission of Plaintiff’s records into evidence under CPLR §4518 (see Bank of N.Y. Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]). Nevertheless, virtually all the salient loan documents were created by Plaintiff’s assignors and Pomeranz failed to demonstrate knowledge of any other entity’s record keeping practices (see Berkshire Bank v. Fawer, 187 AD3d 535 [1st Dept 2020]; IndyMac Fed. Bank, FSB v. Vantassell, 187 AD3d 725 [2d Dept 2020]). Pomeranz also failed to attest that any records received from prior makers were incorporated into the records Plaintiff kept and were routinely relied on in its business (see U.S. Bank N.A. v. Kropp-Somoza, 191 AD3d 918 [2d Dept 2021]; Tri-State Loan Acquisitions III, LLC v. Litkowski, 172 AD3d 780, 782-783 [2d Dept 2019]; cf. Bank of Am., N.A. v. Brannon, 156 AD3d 1, 10 [1st Dept 2017]). 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 of the facts, or (3) other evidence in admissible form” (Deutsche Bank Natl. Trust Co. v. McGann, 183 AD3d 700, 702 [2d Dept 2020]). Although the terms contained in the deferral agreement could establish Defendant’s default (see Redrock Kings, LLC v. Kings Hotel, Inc., 109 AD3d 602 [2d Dept 2013]; EMC Mortg. Corp. v. Stewart, 2 AD3d 772 [2d Dept 2003]), those records were not created by Plaintiff and no evidentiary foundation for the admission of those records was demonstrated. Accordingly, since none of the evidence proffered to demonstrate the note, mortgage and Defendants’ default is in admissible form, Plaintiff failed to establish any of the prima facie elements of the cause of action for foreclosure (see Federal Natl. Mtge. Assn. v. Allanah, 200 AD3d 947 [2d Dept 2021]). As to the branch of Plaintiff’s motion to dismiss Defendants’ affirmative defenses, 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”. For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v. Vorobyov, 188 AD3d 803, 805 [2d Dept 2020]; Emigrant Bank v. Myers, 147 AD3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a “defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed” (Federici v. Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). As pled, all the affirmative defenses are entirely conclusory and unsupported by any facts in the answer. As such, these affirmative defenses are nothing more than unsubstantiated legal conclusions which are insufficiently pled as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v. Hayden, 169 AD3d 569 [1st Dept 2019]; see also Bosco Credit v. Trust Series 2012-1 v. Johnson, 177 AD3d 561 [1st Dept 2020]; 170 W. Vil. Assoc, v. G & E Realty, Inc., 56 AD3d 372 [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 specific legal arguments were not proffered in support of any affirmative defense, those defenses were abandoned (see U.S. Bank N.A. v. Gonzalez, 172 AD3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v. Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, N.A v. Perez, 41 AD3d 590 [2d Dept 2007]). Plaintiff has established that it is entitled to a default judgment against all non-appearing Defendants (see CPLR §3215; SRMOF 11 2012-1 Trust v. Tella, 139 AD3d 599, 600 [1st Dept 2016]). The branch of Plaintiff’s motion to amend caption is granted without opposition (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v. Laszio, 169 AD3d 885, 887 [2d Dept 2019]). Accordingly, it is ORDERED that the branch of Plaintiff’s motion for summary judgment on its causes of action for foreclosure and appointment of a referee are denied, and it is ORDERED that all the affirmative defenses in Defendants’ answer are stricken, and it is ORDERED that the Defendants captioned as “JOHN DOE” are hereby stricken from the caption, and it is further ORDERED the caption is amended as follows: O-SB 510 SIXTH FINANCE, LLC, Plaintiff v. 510 BORROWER LLC, CLINTON SMULLYAN, JR., ARLINE VOGEL, MOSBACHER PROPERTIES GROUP, LLC, BOARD OF MANAGERS OF THE GREENWICH CONDOMINIUM, THE CITY OF NEW YORK, and NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, Defendants and it is ORDERED that this matter is set down for a status conference on March 20, 2023 @ 11:20 am via Microsoft Teams. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: January 12, 2024
