Plaintiff commenced this action seeking to foreclose on a mortgage on the subject real property known as 60-12 172nd Street, Fresh Meadow, New York to secure repayment of a note, evidencing a loan in the original principal amount of $603,000.00, plus interest extended to defendant Aorta, as the record owner of the premises, by ABN AMRO Mortgage Group, Inc. (ABN AMRO). Plaintiff alleges that it is the successor in interest to ABN AMRO, by merger, and is the current holder of the mortgage and underlying note. Plaintiff also alleges that defendant Aorta defaulted under the terms of the mortgage and note by failing to make the monthly installment payment of interest due on January 1, 2008, and thereafter, and, as a consequence, it elects to accelerate the entire mortgage debt.

Defendant Aorta served an answer denying the material allegations of the complaint, and asserting various affirmative defenses. The remaining defendants have failed to appear or answer the complaint.

Plaintiff moves for summary judgment in its favor and striking the answer with counterclaims of defendant Aorta, for leave to appoint a referee to determine the amount due and owing and ascertain whether the subject premises may be sold in parcels, for leave to amend the caption by substituting Jane Smith, John Smith, Lee Vainer and Anat Kaufman as defendants "John Doe No. 1" through "John Doe No. 4" respectively, and deleting reference to the remaining "John Doe" defendants, sued herein as "John Doe No. 5" through "John Doe No. 10," and for an award of attorneys' fees.

That branch of the motion seeking leave to amend the caption as proposed is granted.

With respect to that branch of the motion for summary judgment as against defendant Aorta, on a motion for summary judgment in a foreclosure action, a plaintiff must make a prima facie showing by producing the mortgage, the unpaid note, bond, or obligation, and the evidence of default (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2nd Dept. 2002]; IMC Mtge. Co. v Griggs, 289 AD2d 294 [2nd Dept. 2001]; Paterson v Rodney, 285 AD2d 453 [2nd Dept. 2001]). In support of the motion for summary judgment against defendant Aorta, plaintiff offers a copy of the pleadings, affidavits of service, a copy of the subject mortgage and underlying note, and an affidavit of Scott Scheiner, an assistant [*2]vice-president of plaintiff, indicating, among other things, that defendant Aorta is in default in payment of the monthly mortgage installment due under the mortgage.

The submissions establish plaintiff's prima facie entitlement to summary judgment as against defendant Aorta (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra ; IMC Mtge. Co. v Griggs, 289 AD2d 294, supra ; Paterson v Rodney, 285 AD2d 453, supra ). The burden shifts to defendant Aorta to raise a triable issue of fact regarding his defenses (see, Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [1st Dept. 2005]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra ; First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2nd Dept. 2000]).

With respect to the first affirmative defense asserted by defendant Aorta based upon lack of personal jurisdiction due to improper service, defendant Aorta failed to move to dismiss the complaint upon such ground within 60 days of service of a copy of his answer. As a consequence, the defense is deemed waived (CPLR 3211[e]; DeSena v HIP Hosp., Inc., 258 AD2d 555 [2nd Dept. 1999]; Wade v Byung Yang Kim, 250 AD2d 323 [2nd Dept. 1998]; Fleet Bank, N.A. v Riese, 247 AD2d 276 [1st Dept. 1998]).

With respect to the second affirmative defense asserted by defendant Aorta, the complaint states a cause of action for foreclosure.

With respect to the third affirmative defense based upon payment, defendant Aorta has failed to allege or prove any facts supporting such defense (see, Glenesk v Guidance Realty Corp., 36 AD2d 852 [2nd Dept. 1971]).

With respect to the fourth and fifth affirmative defenses, defendant Aorta asserts plaintiff lacks standing to bring this action because the merger of ABN AMRO into plaintiff occurred prior to the making of the mortgage loan, and plaintiff has failed to provide proof of any assignment of the mortgage from ABN AMRO to plaintiff.

To the extent defendant Aorta asserts discovery regarding the merger is necessary, he has failed to demonstrate how discovery may reveal the existence of a triable issue of fact regarding the fourth and fifth affirmative defenses based upon lack of standing that would warrant the denial of summary judgment (see, JP Morgan Chase Bank, N.A. v Agnello, 62 AD3d 662 [2nd Dept. 2009]). The certificate of merger of ABN AMRO into plaintiff was filed with the New York State Department of State on August 31, 2007 (see, Business Corporation Law § 904[a]), and indicates, by its terms, the merger was to take effect as of September 1, 2007.

Under section 906(b)(1) of the Business Corporation Law, when a merger has been effected, the surviving corporation will thereafter, consistent with its certificate of incorporation as altered or established by the merger, possess all the rights, privileges, immunities, powers, and purposes of the absorbed corporation. Therefore, any right that lawfully belonged to an absorbed corporation can be asserted by the surviving corporation (see, Platt Corporation v Platt, 15 NY2d 705 [1965]; W.H. McElwain Co. v Primavera, 180 App Div 288 [1st Dept. 1917]; In re New York Water Serv. Corp., 67 NYS2d 850 [Sup Ct Kings County 1946] [N.O.R.], aff'd, 271 App Div 1019 [2nd Dept.], aff'd, 296 NY 1016 [1947]). [*3]

Defendant Aorta makes no claim that he was defrauded by the origination of the mortgage loan in the name of ABN AMRO, as opposed to plaintiff, or that the mortgage was invalid for lack of consideration. Furthermore, because the merger of ABN AMRO into plaintiff was effected prior to the commencement of this action, no assignment of the mortgage and note to plaintiff was necessary to establish plaintiff's interest in the claim at issue as a sufficient predicate for foreclosure (see generally, W.H. McElwain Co. v Primavera, 180 App Div 288, supra ).

With respect to the sixth affirmative defense, defendant Aorta asserts that plaintiff failed to provide him with a proper notice of default, and notice of acceleration. Paragraph 22 of the mortgage requires that plaintiff send defendant Aorta a 30-day notice of default prior to demanding full payment of the loan in the event of defendant Aorta's default. That the notice sent to defendant Aorta advised that plaintiff "may require immediate payment in full" (emphasis supplied) was in accord with the mortgage terms relative to the contents of the notice (see plaintiff's Exhibit "E," Mortgage at paragraph 22[b][4]). Defendant Aorta has failed to demonstrate his entitlement to any other "unequivocal" notice of default pursuant to any mortgage provision or statute.

In addition, the complaint also clearly alleges that plaintiff elects to accelerate the mortgage debt. Thus, to the extent plaintiff offers an affidavit of service of the complaint upon defendant Aorta and filed a copy of the summons, complaint and notice of pendency, plaintiff has properly manifested its election of its option to accelerate the mortgage debt (see, Albertina Realty Co. v Rosbro Realty Co., 258 NY 472 [1932]; Logue v Young, 94 AD2d 827 [3rd Dept. 1983]).

That branch of the motion by plaintiff to strike the affirmative defenses asserted by defendant Aorta is granted.

Because defendant Aorta has failed to come forward with any evidence showing the existence of a triable issue of fact with respect to any defense, plaintiff is entitled to summary judgment as against him (see, Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2nd Dept. 1997]; DiNardo v Patcam Serv. Station, 228 AD2d 543 [2nd Dept. 1996]). That branch of the motion by plaintiff for summary judgment as against defendant Aorta is granted.

That branch of the motion for summary judgment dismissing the counterclaims of defendant Aorta is denied as moot. Plaintiff has failed to demonstrate defendant Aorta has asserted any counterclaims against it, or that issue has been joined with respect to any counterclaims.

That branch of the motion for leave to appoint a referee is granted.

Settle order.

J.S.C.

Appearances of Counsel: [*4]

For plaintiff: Jon B. Felice & Associates, P.C., by Jon B. Felice and John J. Ricciardi, Esqs.,11 East 44th Street, New York, NY 10017

For Defendant: Grant Pudalov, P.C., by Grant Pudalov, Esq., 3601 Hempstead Turnpike, Levittown, NY 11756