Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff Citimortgage, Inc. (hereinafter Citimortgage or movant), for an order [*2]permitting the substitution of Federal National Mortgage Association (hereinafter FNMA) as plaintiff in the instant action.

- Notice of motion

- Affirmation in support

- Exhibits A-C

- Proposed order of substitution

On October 6, 2009, Citimortgage commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency with the Kings County Clerk's office. The action is to foreclose a mortgage (hereinafter the mortgage) on certain residential real property known as 2340 National Drive Brooklyn, New York Block 8592 and Lot 57 (hereinafter the property).

The movant's motion papers consists of the notice of motion, an affirmation of David Gallo, its counsel (hereinafter Gallo), a proposed order of substitution and three annexed exhibits labeled A through C. Gallo's affirmation contains fifteen allegations of fact. In paragraph three, he describes exhibits A as the summons, complaint and notice of pendency. In paragraph nine he describes exhibit B as an assignment of the mortgage to FNMA. He does not describe or explain why exhibit C is attached to the motion.

When the affiant relies on documents, the documents relied upon must be annexed (Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d 714, 717 [1986]; Afco Credit Corp. v Mohr, 156 AD2d 287, 288 [1st Dept 1989]), and the affiant must establish an adequate evidentiary basis for them. Mere submission of documents without any identification or authentication is inadequate (Higen Assocs. v Serge Elevator Co., 190 AD2d 712, 713 [2nd Dept 1993]; Spitzer v Schussel, 17 Misc 3d 1120(A) [NY Sup Ct 2007]).Consequently, exhibit C is disregarded.

An original mortgagee can continue an action even though it assigned its interest in the mortgage and note to another entity during the pendency of an action, unless the court directs a substitution of parties pursuant to CPLR 1018 (see IndyMac Bank F.S.B. v Thompson, 99 AD3d 669 [2nd Dept 2012]). Moreover, "[t]he determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court" (GRP Loan, LLC v Taylor, 95 AD3d 1172 [2nd Dept 2012]).

CPLR 1018 provides that upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.

"CPLR 1018 addresses the situation in which a party transfers her interest in the subject matter of the action to another person while the action is pending, as, for example, by assignment of the claim (see NY Gen.Oblig.Law § 13-101) or conveyance of the relevant property. CPLR [*3]1018 authorizes continuation of the action by or against the original party—the assignor/transferor—without the need for substitution of the assignee/transferee." (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1018).

In this instance, the movant's motion papers are ambiguous and apparently incomplete. In paragraph five of his affirmation, Gallo describes Citimortgage as the "servicer/holder [sic]" of the note. In paragraph six he claims that FNMA is the owner of the note and mortgage at all relevant times without specifying what time he meant. In paragraph seven he states that Citimortgage transferred the servicing rights of the note and mortgage to FNMA on February 1, 2014.

It is unclear whether the movant is seeking to substitute FNMA as plaintiff because it is the owner of the subject note and mortgage or because it is the servicer of the owner. The court will address both contentions and the evidence supporting it.

Although the movant annexed an assignment evidencing that the mortgage was assigned by Citimortgage to FNMA, it proffered no admissible evidence that FNMA owned the note. Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity (Bank of New York Mellon v Gales, 116 AD3d 723 [2nd Dept 2014] citing, U.S. Bank, N.A. v Collymore, 68 AD3d 752 at 754 [2nd Dept 2009]).

There was no evidence submitted showing that FNMA had authority to act as servicer of the note.

Accordingly, the motion is denied without prejudice. In the event that Citimortgage seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers.

The foregoing constitutes the decision and order of this Court.

J.S.C.