Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment against defendant, amending the caption and for the appointment of a referee to compute the amount due. Defendant cross-moves to dismiss the action pursuant to CPLR §§3211, 3212(b), 1001(b), and 3015(b), or, in the alternative, for leave to amend the answer pursuant to CPLR §3025(b).

This is a commercial mortgage foreclosure action with respect to real property, a religious structure, located at 1511 50th Street, Brooklyn, New York ("Property"). On September 22, 2008, pursuant to a note ("Note"), defendant Cong. Atzei Chaim of Siget, a/k/a Congregation Atzei Chaim of Siget ("defendant"), a religious corporation, borrowed $499,000 from State Bank of Long Island ("State Bank"). As collateral security for the repayment of the Note, defendant, which is the owner of record of the Property, executed a mortgage also dated September 22, 2008 ("Mortgage"). Plaintiff contends that defendant has defaulted on the Note.

The defendant argues that the Property, in addition to its religious function, consists of Rabbi Jacob Teitelbaum's ("Teitelbaum") private residence and "Beth Medrash" where Teitelbaum and members of the defendant congregation "meet, study, pray and receive [Teitelbaum's] spiritual advice and guidance."^[FN1] Teitelbaum resides at the Property with his wife and eight children and defendant argues that it "is really a nominee for [Teitelbaum], who is the essence of the Congregation" and the "true owner" of the Property.

In opposition to the motion and in support of its cross-motion to dismiss, premised upon its insistence that the instant action is a residential foreclosure, defendant argues that plaintiff was required to provide Teitelbaum and the defendant with special notice upon the commencement of the foreclosure action pursuant to New York Real Property Actions and Proceedings Law ("RPAPL") §1303 and a special summons pursuant to RPAPL §1320 and that it failed to do so. Plaintiff argues that RPAPL §§ 1303 and 1320 are inapplicable in this action as they only apply to residential properties and the plaintiff is foreclosing upon a religious structure which is not residential.

In further opposition to the motion, defendant also argues that plaintiff has not [*2]established its standing to commence the action, plaintiff did not provide a notice of default and opportunity to cure pursuant to the Mortgage, plaintiff failed to join Teitelbaum as a necessary party, and plaintiff failed to plead its corporate status with particularity in the complaint pursuant to CPLR §3015(b). Defendant cross-moves to amend the answer to include its defenses that the plaintiff did not have standing or plead its corporate status with particularity. Plaintiff argues that it has established that it is the successor to State Bank and is the holder of the Note and Mortgage as a matter of law, the loan documents did not require a notice to cure, Teitelbaum is not a necessary party to the action as it is based upon a commercial loan and he was not a signatory to the Note, and the Plaintiff, as a national banking association created by federal law, is not required to plead its state of incorporation.Defendant has not denied it is a signatory to the Note and Mortgage or that it defaulted on the Note. Although defendant has provided a bank statement, telephone bill, and telephone directory excerpt as proof of Teitelbaum and his wife's residency at the Property, the defendant has not established whether there exists a written lease or any other agreement between Teitelbaum and the defendant, nor has defendant offered evidence that it provided a list of tenants, including Teitelbaum, as required by paragraph 26(a) of the Mortgage. The Mortgage itself expressly indicates that the Property is not improved as containing dwelling units, nor does the name Teitelbaum appear anywhere in the mortgage documents.

In support of its motion, plaintiff has submitted the complaint, Note, Mortgage, proof that it is the successor to the original mortgagee, and an affidavit by a person with knowledge establishing that the defendant has defaulted on the Note. Accordingly, plaintiff has established its prima facie entitlement to judgment as a matter of law (see Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832, 833 [2d Dept 2009] Daniel Perla Assoc., LP v 101 Kent Assoc., Inc., 40 AD3d 677, 677 [2d Dept 2007] US Bank Trust N.A. Trustee v Butti, 16 AD3d 408, 408 [2d Dept 2005] Republic Natl. Bank of NY v O'Kane, 308 AD2d 482, 482 [2d Dept 2003] Hypo Holdings v Chalasani, 280 AD2d 386, 387 [1st Dept 2001] Marine Midland Bank v Micheli Contr. Corp., 95 AD2d 946, 947 [3d Dept 1983]). Thus the burden shifts to defendant to produce evidentiary proof, in admissible form, sufficient to raise a triable issue of fact as to its defenses (see Washington Mut. Bank, F.A., 63 AD3d at 833; US Bank Trust N.A. Trustee,16 AD3d at 408).

Defendant, in response to plaintiff's prima facie showing of its entitlement to summary judgment as a matter of law, has failed to demonstrate any triable issue of fact as to any defense in this foreclosure action (see Washington Mut. Bank, F.A., 63 AD3d at 833; Daniel Perla Assoc., LP, 40 AD3d at 678; US Bank Trust N.A. Trustee, 16 AD3d at 408; Republic Natl. Bank of NY, 308 AD2d at 482; Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 558 [2d Dept 1997]).

Pursuant to RPAPL § 1303(1), "[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to: (a) any mortgagor if the action relates to an owner-occupied one-to-four family dwelling; and (b) any tenant of a [*3]dwelling unit in accordance with the provisions of this section." RPAPL § 1304 defines a "home loan", which is the basis for a residential foreclosure action (see Independence Bank v Valentine, 2013 NY Slip Op 7937 [2d Dept 2013]), as one in which "[t]he borrower is a natural person", the debt is incurred "primarily for personal, family or household purposes", and the loan is secured by a mortgage on property on which the structure is "intended principally for occupancy of from one to four families" (RPAPL §§ 1304, 3408).

The Property at issue in this action is a religious structure and is not residential real property. The borrower was not a natural person and the debt was not incurred primarily for personal, family or household purposes. On the first page of the Mortgage, a stamp notes, "Premises described herein are not now or to be improved by a one to six [unit]^[FN2] dwelling." The Rider to the Mortgage, signed by three trustees of the defendant, none of whom is Jacob Teitelbaum, also states, that the Mortgage does not cover real property "principally improved or to be improved by one or more structures containing in the aggregate not more than six residential dwelling units, each having their own separate cooking facilities." Further, the Property is classified on the New York City Department of Finance Office of the City Register's Recording and Endorsement Cover Page, that was attached to the Mortgage upon its filing, as a "RELIGIOUS STRUCTURE". As RPAPL § 1303 only applies to foreclosure actions involving residential real property, it is inapplicable in this commercial foreclosure action. Defendant's citation to dicta in Flushing Sav. Bank, FSB v 509 Rogers LLC (32 Misc 3d 420, 422 [Sup Ct, Kings County 2011]), for the proposition that an individual living in a house of worship is entitled to notice pursuant to RPAPL § 1303, is unavailing as the property at issue in that action was classified as a "1-3 Family With Store/Office" in filings with the New York City Department of Finance Office of the City Register.

Similarly, as RPAPL § 1320 and Administrative Order 431/11 only apply to residential foreclosure actions, plaintiff was not required to provide a special summons or an additional attorney's affirmation (see RPAPL§ 1320; Administrative Order 431/11, March 2, 2011, J. Pfau; see generally, Independence Bank v Valentine, 2013 NY Slip Op 7937 [2d Dept 2013], holding that an individual guarantor was not entitled to a foreclosure settlement conference where the individual's primary residence secured a commercial loan to a corporation). Defendant's contention that the out-of-state verification of the complaint, as required pursuant to CPLR 3020, was improperly signed four days prior to the date of the complaint is of no consequence as the defendant has not demonstrated that it was prejudiced by the discrepancy of dates and the affidavit and documents submitted in support of the current motion further verify the allegations in the complaint.

Plaintiff has also established that it is the successor to the original mortgagee, State [*4]Bank, through the submission of SEC filings and FDIC bank history records which show that State Bank merged into, and subsequently operated as part of, Valley National Bank on January 1, 2012. 12 USC § 215a expressly provides that the merger of individual banks into a national bank vests in the receiving banking association all rights of the individual banks without further evidence of transfer. As the merger of State Bank into plaintiff occurred prior to the commencement of this action, plaintiff had standing to commence this action. Defendant's further argument that paragraph 18 of the rider to the Mortgage "implies a notice of default and cure period" is also unavailing. Paragraph 18 merely provides for a default interest rate, greater than the loan rate, to take effect upon borrower's default. Neither paragraph 18, nor any other provision in the Mortgage or Note, required the plaintiff to provide the defendant with a notice of default or an opportunity to cure.^[FN3] Contrary to defendant's contention, there is no ambiguity in paragraph 18.

Further, although Teitelbaum may have been a necessary party to this action pursuant to RPAPL § 1311, Teitelbaum was not a signatory to the commercial Note or Mortgage. As Teitelbaum is not an indispensable party, summary judgment is not precluded by the failure to join him as a party (see Polish Nat. Alliance of Brooklyn, USA v White Eagle Hall Co., Inc., 98 AD2d 400, 406 [2d Dept 1983] 1426 46 St., LLC v Klein, 60 AD3d 740, 742 [2d Dept 2009] John Hancock Mut. Life Ins. Co. v 491-499 Seventh Ave. Assocs., 220 AD2d 208 [1st Dept 1995], holding, "[s]ummary judgment was not precluded by nonjoinder of the building's tenants, who were necessary' parties only in the sense that their subordinate interests could be adversely affected only if they were joined, and not in the sense of being indispensable"). Although the defendant cites to East NY Sav. Bank v Austin Mall Assocs., (224 AD2d 652 [2d Dept 1996]) in support of its claim that summary judgment cannot be granted due to plaintiff's failure to include Teitelbaum as a defendant, in that action, the tenants not named as parties had leases to the commercial property that was the subject of the commercial foreclosure action and the court denied the motion, with leave to renew, following joinder of those tenants. In this action, defendant has not established that Teitelbaum has a lease to the Property and, even if Teitelbaum does have a lease, he may not be dispossessed by a purchaser at a foreclosure sale absent further proceedings (see 6820 Ridge Realty LLC v Goldman, 263 AD2d 22, 26 [2d Dept 1999] 1426 46 St., 60 AD3d at 742-743; 3-33 Bergman on New York Mortgage Foreclosures § 33.04[2] [2013]).

Defendant's argument that the action must be dismissed for failure to plead the state in which the plaintiff maintains its corporate status is also unavailing. The complaint identifies the plaintiff as a "national banking association, having a place of business located at 2 Jericho Plaza, Jericho, New York 11753". As the plaintiff is a national banking association, and is described as such in the complaint, the pleadings are in compliance with [*5]CPLR § 3015(b).

As there is no merit to the proposed defenses to be added by amendment of defendant's answer, plaintiff's purported lack of standing or the failure to plead particularity of the plaintiff's corporate status in the complaint, defendant's cross-motion to amend its answer is denied (see Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008]).

Defendant's remaining affirmative defenses are stricken as they are pro-forma defenses that are conclusory in nature and the defendant has failed to provide any specific factual allegations in support of the alleged defenses.

Accordingly, plaintiff's motion for summary judgment pursuant to CPLR 3212 is granted. Plaintiff's motion for an order of reference pursuant to Real Property Actions and Proceedings Law 1321 is granted.

Defendant's cross-motion is denied.

The foregoing constitutes the decision and order of the court.

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J.S.C.