Upon the following papers numbered 1-31 read on this motionfor summary judgment ; Notice of Motion and supporting papers 1-15 ; Notice of Cross Motion and supporting papers 16-22 ; Answering Affidavits and supporting papers23-24 ; Replying Affidavits and supporting papers 25-30 ; Other 31 ; it is,

ORDERED that the motion by the plaintiff, inter alia, for summary judgement and the appointment of a referee is granted; and it is further

ORDERED that the cross motion by the defendants Northwood Village LLC, Uri Hanson, Avraham Sharabani, and Pinewood Terrace LLC, inter alia, for an order dismissing the complaint is denied.

This is an action to foreclose a commercial mortgage executed by the defendant Northwood Village LLC ("Northwood Village") and secured by 19 condominium units in a building known as Pinewood Terrace at Patchogue Condominium located in Patchogue, New York. The defendants Uri Hanson, Avraham Sharabani, and Pinewood Terrace LLC (collectively the "guarantors") guaranteed payment of Northwood Village's obligation to the plaintiff credit union, which now moves, inter alia, for summary judgment and the appointment of a referee. The defendant New World Equities Inc. ("New World"), the holder of a subordinate mortgage on the same 19 condominium units, opposes the plaintiff's motion. Northwood Village and the guarantors cross move for an order dismissing the complaint pursuant to CPLR 3211, alternatively to amend their answer to include an unspecified additional affirmative defense, and to recover attorney's fees.

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 so, it is incumbent upon the defendant to produce evidentiary proof in admissible form sufficient to require a trial of his defenses (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 moving defendants have failed to raise a triable issue of fact in opposition thereto.

New World seeks affirmative relief from the court without cross moving for such relief. New World seeks an order directing that the condominium units be sold separately and not in one parcel; directing that only so many units be sold as are necessary to satisfy the plaintiff's debt; directing that the plaintiff's request for default interest, late fees, and other charges be denied; directing that the plaintiff mitigate its damages and allow the units to be sold [*2]at fair market value; and directing that the plaintiff thereafter release its mortgage lien on the individual units sold. Inasmuch as the defendant has failed to serve the plaintiff with a notice of cross motion (see, CPLR 2215) or any other notice that it was required to respond to a motion for affirmative relief, the court is without jurisdiction to grant the relief requested by the defendant (see, Myung Chun v N. Am. Mtge. Co., 285 AD2d 42, 45; see also, J.A. Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604; Matter of Briger, 95 AD2d 887).

New World had failed to rebut the plaintiff's prima facie case. New World's opposition is supported by an attorney's affirmation that does not address any of the elements of the plaintiff's prima facie case. It is, therefore, without evidentiary value (see generally, Zuckerman v City of New York, 49 NY2d 557, 565). In any event, the question of how the condominium units will be sold, either separately or in one parcel, will be determined by the Referee, who is authorized by statute and the accompanying long-form order to make such a determination (see generally, RPAPL 1321). Moreover, mitigation of damages is not an affirmative defense to an action to foreclose a mortgage (see, US Bank Nat. Assoc. v McPherson, 35 Misc 3d 1219 [A] at *5; HSBC Bank USA v Picarelli, 23 Misc 3d 1135[A] at *2).

Ingalls & Stockman v Morgan (10 NY 178), upon which New World relies is inapposite. It holds that, when one creditor has a lien upon two funds for the security of his debt and another party has an interest in only one of those funds without any right to resort to the other, equity will compel the creditor to take his satisfaction out of the fund in which he alone has an interest so that both parties may, if possible, escape without injury (see, Andes Co-operative Dairy Co. v Liddle, 238 App Div 726, 731 [Crasper, J. dissenting]), affd 263 NY 578; Bowery Savings Bank v Nosmo Realty Corp., 218 App Div 160, 162). Here, both New World and the plaintiff have security interests in the same 19 condominiums. Therefore, the plaintiff cannot take its satisfaction out of only those condominiums in which it alone as an interest.

Turning to the cross motion, Northwood Village and the guarantors have failed to submit a copy of their proposed amended answer clearly showing the addition to be made for the court's review (see, CPLR 3025 [b] Haller v Lopane, 305 AD2d 370, 372). Accordingly, the branch of the cross motion which is for leave to amend the answer is denied.

Northwood Village and the guarantors have failed to articulate any statutory or contractual basis for attorney's fees (see, Glenn v Hoteltron Sys. 74 NY2d 386, 393). Accordingly, the branch of the cross motion which is to recover attorney's fees is also denied.

The branch of the cross motion which is to dismiss the complaint is untimely. A motion to dismiss must be made before answering unless it raises the objections of lack of subject matter jurisdiction, failure to state a cause of action, or failure to join a necessary party (see, CPLR 3211 [e] Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:53). The cross motion was made after Northwood Village and the guarantors answered, and it does not raise any of the three grounds that are excepted from the time [*3]requirement. In any event, the issues raised by Northwood Village fail to raise a triable issue of fact in opposition to the plaintiff's prima facie case.

The record reveals that Northwood Village and the guarantors were notified of their default in accordance with the mortgage agreement. When, as here, an attorney sends a notice of default to the maker of the note and there is no issue of fact as to whether the attorney has authority to act as the agent of the note's holder, the notice is valid (see, Northport Car Wash, Inc. v Northport Car Care, LLC, Sup Ct, Nassau County, May 30, 2007, Martin, J. [2007 WL 6881699], citing Banditree, Inc. v Calpo, Inc., 146 AD2d 74). Contrary to the contentions of Northwood Village and the guarantors, the loan documents do not specifically require that the plaintiff issue the default notice, they merely require that a notice of default be sent to the mortgagor/borrower before the note may be accelerated. The language in the mortgage upon which Northwood Village and the guarantors rely applies only to defaults in the performance of a covenant. It does not apply to payment defaults. The notices sent to Norwood Village and the guarantors clearly identify the reason for their default as the failure to make the payment due on December 1, 2012, and every month thereafter. Moreover, the court finds that Jaspan Schlesinger had apparent authority to act for the plaintiff and that it was not required to submit independent proof of its agency in order to render the notices effective (see, Banditree, Inc. v Calpo, Inc., supra at 77).

Northwood Village and the guarantors may not rely on an alleged oral modification of the note in which the plaintiff purportedly agreed to accept payments in an amount less than the amount due each month. Both the mortgage and the note contain proscriptions against oral modification. 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 (see, Rose v Spa Realty Assoc., 42 NY2d 338, 343).

Finally, Northwood Village and the guarantors expressly waived their right to interpose a counterclaim in any action brought by the plaintiff to enforce its rights under the note and mortgage. Accordingly, the branch of the plaintiff's motion which is to dismiss the counterclaims of Northwood Village and the guarantors is granted.

The proposed long-form order appointing a referee to compute pursuant to RPAPL §1321 is signed simultaneously herewith, as modified by the court. [*4]

Dated:January 8, 2014

J.S.C.