ORDERED that the branches of the motion by the plaintiff which are for an order granting summary judgment in its favor; dismissing the counterclaims of the defendant Patio Gardens III, LLC; appointing a referee to hear and compute; and amending the caption are granted; and it is further

ORDERED that the branches of the motion which are to strike the defendants' answers are denied; and it is further

ORDERED that the cross motion by the defendant George Heinlein for an order staying this foreclosure action insofar as it is asserted against him is denied; and it is further

ORDERED that Paul Bailey, Esq., with an office at P.O. Box 86, Sag Harbor, New York 11963, is hereby appointed Referee to ascertain and compute the amount due the plaintiff for principal, interest, real estate taxes, and other disbursements provided for by statute and in the note and mortgage upon which this action is based, and to examine and report on whether the mortgaged premises can be sold in parcels; and it is further

ORDERED that, by accepting this appointment, the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (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 it is further

ORDERED that, if the Referee is disqualified from accepting this appointment pursuant to § 36.2(c) of the Rules of the Chief Judge, he shall notify the appointing Justice forthwith; and it is further

ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or paying any funds to himself without compliance with Part 36 of the Rules of the Chief Judge; and it is further [*2]

ORDERED that, pursuant to CPLR 8003(a) and 22 NYCRR 36.4(d), the Referee's fee for the computation stage and the filing of his report is fixed in the amount of $250.00; and it is further

ORDERED that the caption is amended by deleting therefrom the names of the

defendants "John Doe #1" through "John Doe #10"; and it is further

ORDERED that the caption shall hereafter read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

_____________________________________________x

PEOPLE'S UNITED BANK, successor by merger with

BANK OF SMITHTOWN,

Plaintiff,

-against-

PATIO GARDENS III, LLC; JOHN BLANEY; BRUCE

BARNET; and GEORGE HEINLEIN,

Defendants.

______________________________________________x

This is an action to foreclose mortgages on two parcels of commercial real property owned by the defendant Patio Gardens III, LLC ("Patio Gardens"). The defendants John Blaney, Bruce Barnet, and George Heinlein (collectively the "individual defendants") personally guaranteed payment of Patio Garden's obligations to the plaintiff bank, which now moves, inter alia, for summary judgment and the appointment of a referee. The defendants oppose the motion, and George Heinlein cross moves for an order pursuant to RPAPL 1301 staying the action insofar as it is asserted against him until the property is sold and a deficiency is established.

It is well settled that, in moving for summary judgment in an action to foreclose a mortgage, the plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note and guarantees, and evidence of default. When the plaintiff has done [*3]so, it is incumbent upon the defendant to produce evidentiary proof in admissible form sufficient to require a trial of his defenses (see, (see, Signature Bank v Galit Properties, Inc., 80 AD3d 689; Republic Natl. Bank of NY v O'Kane, 308 AD2d 482). The court finds that the plaintiff has established, prima facie, its entitlement to judgment as a matter of law and that the defendants have failed to raise a triable issue of fact in opposition thereto.

The defendants Bruce Barnet and George Heinlein contend that the plaintiff's motion for summary judgment is premature as to them because, as guarantors, their liability arises only if the sale of the property results in a deficiency. In support thereof, they rely on RPAPL 1301 and RPAPL 1371.

Barnet and Heinlein's reliance on RPAPL 1301 and RPAPL 1371 is misplaced. RPAPL 1301 embodies the equitable principle that, once a remedy at law has been resorted to, it must be exercised to exhaustion before a remedy in equity, such as foreclosure, may be sought (Aurora Loan Servs., LLC v Lopa, 88 AD3d 929, 930). The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt (Id.). Thus, the holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but not both (Id.). A prayer for a deficiency judgment in a foreclosure complaint does not constitute a separate action for a money judgment in violation of the election-of-remedies doctrine (Id.). Indeed, RPAPL 1371 (2) permits the plaintiff in a foreclosure action to make a motion in that action for leave to enter a deficiency judgment (Id.). Thus, a cause of action for a deficiency judgment is incidental to the principal relief demanded against the mortgagor in a foreclosure action (Id.; see also, LibertyPointe Bank v 7 Waterfront Prop., LLC, 94 AD3d at 1062). Accordingly, the cross motion is denied.

The defendant Patio Gardens contends that the plaintiff has failed to establish that it has standing to maintain this action. Patio Gardens contends that the plaintiff has failed to produce any evidence that the notes and mortgages were transferred from the Bank of Smithtown to People's United Bank prior to its commencement of the action.

The record reveals that the Bank of Smithtown merged with People's United Bank in 2010, approximately two years before the commencement of this action. Banking Law § 602, which governs the effect of a merger, provides that the receiving bank shall be considered the same business and corporate entity as the bank that merged into it and that all of the property, rights, and powers of the merged bank shall vest in the receiving bank (Ladino v Bank of America, 52 AD3d 571, 572). Thus, no formal assignment is required to effect a transfer of the assets of a merged bank to the receiving bank, and the plaintiff is not required to submit proof that the subject loans were assigned in order to establish its entitlement to summary judgment (Id. at 572-573). At least two courts have recognized that People's United Bank is the successor-by-merger to the Bank of Smithtown's loans with standing to prosecute foreclosure actions (see, People United Bank v Whitford Development, Int., 39 Misc 3d 1228[A] at *4; Bank of Smithtown v 264 West 124 LLC, 105 AD3d 468, 469-470). Accordingly, the court finds that the plaintiff has standing to prosecute this foreclosure action. [*4]

The defendant Patio Gardens contends that the plaintiff did not provide it with written notice of its default, as required by the mortgage and security agreements. The plaintiff contends that no notice of default was required because the loans had already matured before the action was commenced.

The record reveals that the loans originally matured in 2007 and that, through a series of writings, their maturity dates were extended through April 30, 2011. Patio Gardens contends that the maturity dates of the loans were further extended to March 31, 2012, pursuant to a modification, extension, and spreader agreement (MESA). That agreement, however, was never executed, and Patio Gardens' reliance on a purported oral agreement to extend the maturity date of the loans to March 31, 2012, is barred by the statute of frauds.

The notes and mortgages that are the subject of this action all contain proscriptions against oral modification. Parties to a written agreement who include a proscription against oral modification are protected by the statute of frauds (General Obligations Law § 15-301). Any contract containing such a clause cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement is sought (General Obligations Law § 15-301[1]). Put otherwise, if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls. Thus the authenticity of any amendment is ensured (see, Rose v Spa Realty Assoc., 42 NY2d 338, 343). There are two exceptions to the statute of frauds: partial performance and promissory estoppel. Neither exception is available, however, unless the part performance or the acts taken in detrimental reliance are unequivocally referable to the new, oral agreement (Id. at 343). In order to be unequivocally referable, the conduct must be inconsistent with any other explanation (see, Richardson & Lucas, Inc. v New York Athletic Club of City of NY, 304 AD2d 462, 463).

The court finds that Patio Gardens has failed demonstrate any conduct by it that is unequivocally referable to the alleged oral agreement to extend the maturity dates of the loans to March 31, 2012. Patio Gardens' reliance on the plaintiff's conduct in mailing notices to the address for the delivery of notices found in the MESA (the "Pinelawn address") rather than the address found in the mortgage and security agreements (the "Hauppauge address") is unavailing.

Patio Gardens notified the plaintiff of its change of address from Hauppauge to Pinelawn in 2008. Patio Gardens does not contend that the notification was in writing, as required by the mortgage and security agreements. The plaintiff subsequently mailed three letters to the Pinelawn address confirming extensions of the maturity dates of the subject loans to December 31, 2010; March 31, 2011; and April 30, 2011. The fact that the plaintiff acted in a manner inconsistent with the terms of the mortgage and security agreements by mailing letters to the Pinelawn address, without more, does not establish that there was an agreement to extend the maturity dates of the loans beyond April 30, 2011 (see, Southern Federal Sav. & Loan Assoc of Georgia v 21-26 East 105th Street Assocs, 145 BR 375, 381 [SDNY], affd 978 F2d 706 [2nd Cir]). Patio Gardens' inferences taken from the plaintiff's conduct cannot be construed as an [*5]agreement to extend the maturity dates of the loans to March 31, 2012 (Id.). Moreover, Patio Gardens does not contend that it performed any obligations under the alleged agreement, and its claim of detrimental reliance is wholly conclusory (see, Messner Vetere McNamee Scmetterer Euro RSCG, Inc. v Aegis Group, 974 F Supp 270, 275 [SDNY], affd 186 F3d 135 [2nd Cir]). Imposing the alleged agreement on the plaintiff in the absence of any performance by Patio Gardens is inconsistent with the purpose of the part-performance exception to the statute of frauds, which is to provide equitable relief to the party who performed the alleged oral agreement (Id.).

The MESA clearly provides that it shall become effective only when, inter alia, signed by the parties, and it is undisputed that the MESA was never executed. When, as here, the agreement is conditional on a written execution that never occurred and the conduct upon which the defendant relies is not unequivocally referable to the alleged oral agreement, summary judgment is appropriate (see, Grandonico v Consortium Communications Intl., 566 F Supp 1288, 1291-1292 [SDNY]).

In view of the foregoing, the court finds that the loans matured on April 30, 2011, and not March 31, 2012, as Patio Gardens contends. This action was commenced on March 13, 2012. The plaintiff was not required to declare a default or to manifest its election to accelerate the amount due prior to commencing this foreclosure action because the full amount of the debt was past due at the time the action was commenced (see, Gerity Co. v Riscica, 214 AD2d 866, 868; see also, Signature Bank v Galit Properties, Inc., 80 AD3d 689 [plaintiff not required to eliminate triable issues of fact regarding defendants' purported default because promissory note matured before the action was commenced]).

In any event, the record reveals that the plaintiff sent notices of default to each defendant at both the Hauppauge and Pinelawn addresses on November 2, 2011. The notices of default substantially complied with the terms of the mortgage and security agreements (see, Indymac Bank, F.S.B. v Kamen, 68 AD3d 931). Patio Gardens contends that the notices of default sent to the Pinelawn address were sent to "135 Pinelawn Road, Suite 230" rather than to "135 Pinelawn Road, Suite 230 S." However, the three letters sent by the plaintiff to the Pinelawn address were sent to "Suite 2305." Patio Gardens does not contend that it did not receive them, and the record reflects that the notices of default sent to the Pinelawn address were not returned to the plaintiff as undelivered. Accordingly, the court finds that Patio Gardens' conclusory assertion that it did not receive the notices of default is insufficient to raise a triable issue of fact (see, Freedman v Chemical Constr. Corp., 43 NY2d 260, 264).

The court finds that the affidavit of Andrew Levy, the plaintiff bank's vice president of commercial loan recovery, is sufficient to support a motion for summary judgment. Contrary to Patio Garden's contentions, an employee affidavit based on documentary evidence maintained by the bank is sufficient to support a motion for summary judgment in a mortgage foreclosure action (see, Flushing Savings Bank v PJ Bricks, LLC, 2012 NY Slip Op 30056[U], citing Barclay's Bank of New York, N.A. v Smitty's Ranch, Inc., 122 AD2d 323, 324). [*6]Moreover, the documentary evidence and the Levy affidavit are sufficient to establish the plaintiff's entitlement to judgment as a matter of law even if, as Patio Gardens contends, the complaint was verified using the practice of robo-signing.

Finally, the mere hope that additional discovery may uncover evidence that raises a triable issue of fact is insufficient to defeat the plaintiff's prima facie showing (see, Sasson v Setina Mfg. Co., 26 AD3d 487, 488; Hess v Schwartz, 7 Misc 3d 1011[A]). Accordingly, the plaintiff's motion is granted to the extent indicated.

Dated:November 14, 2013

J.S.C.