Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff U.S. Bank National Association as Legal Title Trustee for Truman 2013 SC3 Title Trust (hereinafter USBNA), filed on April 11, 2016, under motion sequence number four, for an order: (1) dismissing defenses asserted in defendant Shabsi Pfeiffer's (hereinafter Pfeiffer) answer pursuant to CPLR 3211(b) and granting summary judgment in its favor as against Pfeiffer pursuant to CPLR 3212; and for permission to treat the answer as a limited notice of appearance; (2) granting a default judgment against all other non-answering defendants pursuant to CPLR 3215; (3) appointing a referee to compute pursuant to the RPAPL 1321; and (5) amending the caption by striking the John Doe defendants.

USBNA's notice of motion

USBNA's memorandum of law in support

Proposed order of reference

USBNA's affirmation in support

Exhibits A-S

Affirmation in opposition by Pfeiffer

Affirmation in opposition by Chana Shereshevsky

Affirmation in opposition by Elka Shereshevsky

Exhibit A

USBNA's affirmation in reply to Pfeiffer's opposition

USBNA's affirmation in reply to Chana Shereshevsky's opposition

Exhibit A

USBNA's affirmation in reply to Elka Shereshevsky's opposition

Exhibit A

On December 19, 2014, USBNA commenced the instant action by electronically filing a summons, complaint and notice of pendency with the Kings County Clerk's office. On January 22, 2015, USBNA filed an amended summons and complaint. On March 19, 2015, defendant Gerard Crockett (hereinafter Crockett) interposed an answer to the amended complaint.

USBNA's amended complaint alleges in pertinent part the following facts. On October 31, 2006, defendant Elka Shereshevsky executed a note (the subject note) in favor of the plaintiff's predecessor in interest in the amount of $1,120,000.00. To secure the subject note Elka Shereshevsky and Chana Shereshevsky executed a mortgage (hereinafter the subject mortgage), recorded on November 20, 2006, on certain real property known as 4809 14th Avenue, Brooklyn, New York, 11219 Block 5636 Lot 6 (hereinafter the subject property). At the time the subject note and subject mortgage were executed, Elka Shereshevsky and Chana [*2]Shereshevsky were the titled owners of the subject property.

On September 17, 2014, Elka Shereshevsky transfered her one-half interest in the subject property to Gerard Crockett and Shabsi Pfeiffer. Elka Shereshevsky defaulted on making payments due and owing on the subject note and has not cured the default. USBNA was subsequently assigned the subject mortgage. USBNA has also alleged that it complied with RPAPL 1304 and 1306 and all provisions of section 595-a of the Banking Law.

By notice of motion filed on May 18, 2015, defendant Crockett moved for an order pursuant to CPLR 3211 (a) (8) dismissing the complaint for lack of personal jurisdiction. By notice of cross motion filed on June 22, 2015, Pfeiffer also moved for an order dismissing the complaint for lack of personal jurisdiction.

By order dated November 17, 2015 issued after a traverse hearing, defendant Pfeiffer was granted leave to interposed a late answer within 20 days. Pfeiffer did interpose an answer to the amended complaint dated November 17, 2015. Pfeiffer's answer has plead eleven affirmative defenses. Among the eleven affirmative defenses, Pfeiffer claimed that USBNA lacked standing to maintain the action, that it failed to comply with RPAPL1304 and 1306 and that it failed to comply with a precondition to accelerate the subject note. No other defendant has interposed an answer to the amended complaint.

Solomon Rosengarten, Esq. (hereinafter Rosengarten) is counsel to Elka Shereshevsky, Chana Shereshevsky and Shabsi Pfeiffer. Rosengarten has opposed USBNA's motion by submitting a set of opposition papers for each one of the three defendants. Each set of opposition papers is supported by a separate affirmation.

USBNA seeks a default judgment against Elka Shereshevsky pursuant to CPLR 3215 and an order of reference pursuant to RPAPL 1321 based on her failure to answer the amended complaint.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (U.S. Bank Nat. Ass'n v Poku,118 AD3d 980, [2nd Dept 2014] citing CPLR 3215[f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]).

RPAPL 1321 provides in pertinent part as follows:

If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.

When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may [*3]be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01 [4] [k] [note: online edition]).

Elka Shereshevsky claims that USBNA is not entitled to a default judgment against her because USBNA amended the summons and complaint and did not submit evidence that it served her with the amended pleading. USBNA did submit an affidavit of service alleging service of the RPAPL 1303 notice; debt validation letter; e-file notice; certificate of merit; and summons and complaint upon Elka Shereshevsky pursuant to CPLR 308 (4). That affidavit of service was filed on February 4, 2015 with the Kings County Clerk's office. On January 22, 2015, USBNA filed a supplemental summons and amended complaint with the Kings County Clerk's office. On March 19, 2015, defendant Gerard Crockett (hereinafter Crockett) interposed an answer to the amended complaint. USBNA did not submit an affidavit of service of the supplemental summons and amended complaint.

An amended pleading, once served, supersedes the initial pleading and becomes the only pleading in the case as though the initial pleading was never served (see Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650 [2nd Dept 2004]; see also, Titus v. Titus, 275 AD2d 409 [2nd Dept 2000]). By amending the complaint and serving it upon Crockett, USBNA replaced the original complaint as if the original complaint never existed. It was then USBNA's obligation to serve the amended complaint on all the defendants to trigger their respective obligation to answer the amended complaint. Elka Shereshevsky has accurately pointed out that USBNA's motion papers do not contain evidence of service of the amended complaint upon her.

Accordingly, USBNA's application for a default judgment against her pursuant to CPLR 3215 and for an order of reference pursuant to RPAPL 1321 is denied.

USBNA seeks an order dismissing the affirmative defenses asserted in Pfeiffer's answer pursuant to CPLR 3211(b) and granting summary judgment in its favor as against her pursuant to CPLR 3212.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (JPMorgan Chase Bank, Nat. Ass'n v Weinberger, 142 AD3d 643 [2nd Dept 2016]; citing HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1206—1207 [2nd Dept 2015]). Additionally, where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing (JPMorgan Chase Bank, Nat. Ass'n v Weinberger, 142 AD3d 643 [2nd Dept 2016]; citing Flagstar Bank, FSB v Mendoza, 139 AD3d 898 [2nd Dept 2015]).

Furthermore, where, as here, the plaintiff in a residential foreclosure action alleges in its complaint that it has served a notice pursuant to RPAPL 1304 on a borrower, in support of a motion for summary judgment, the plaintiff must "prove its allegation by tendering sufficient [*4]evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" (JPMorgan Chase Bank, Nat. Ass'n v Kutch,142 ADd3d 536, 537 [2nd Dept 2016] citing Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106 [2nd Dept 2011]). "Proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC, 85 AD3d 95 at 106 [2nd Dept 2011]).

"A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note" (JPMorgan Chase Bank, Nat. Ass'n v Weinberger, 142 AD3d 643 [2nd Dept 2016]; citing Dyer Trust 2012—1 v Global World Realty, Inc., 140 AD3d 827, 828 [2nd Dept 2016]). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (Id.).

A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).

In support of this branch of its motion, USBNA has submitted, among other things, the pleadings, the subject note, the subject mortgage, the assignments of same, an affidavit in support by Kevin Elliot (hereinafter Elliot), a senior vice president of Rushmore Loan Management Services, LLC (hereinafter Rushmore), USBNA's attorney-in-fact, a limited power of attorney, and the affirmation of its counsel.

Elliot's affidavit was signed before a notary public on February 9, 2016. Elliot has averred that he is a senior vice president of Rushmore and that Rushmore is the attorney-in-fact of USBNA. The limited power of attorney appointing Rushmore as attorney-in-fact for USBNA was signed by USBNA's President and Vice President on August 1, 2014. Elliot's affidavit neither states a date that Rushmore began working for USBNA nor state that Rushmore is the servicer for USBNA.

Elliot's affidavit states that he acquired personal knowledge of the matters stated therein by "examining business records related to the subject mortgage and/or confirm the information to the best of his knowledge, information and belief." Elliot has alleged that Elka and Chana Shereshevsky executed a mortgage encumbering the subject property and that Elka Shereshevsky failed to comply with the conditions set forth in the note and mortgage by failing to make payments due on October 1, 2008, and subsequent thereto.

Elliot is alleging a default by Elka Shereshevsky that occurred in 2008, six years before USBNA appointed Rushmore as its attorney-in-fact. As previously indicated, Elliot did not state that Rushmore was either the servicer or the date that it became the servicer for USBNA. Accordingly, there is no foundation for Elliot's allegations of fact regarding Elka Shereshevsky alleged default in 2008. For the same reasons, there is no foundation for USBNA's claim that it strictly complied with the 90—day notice required by RPAPL 1304.

USBNA also seeks a default judgment against Chana Shereshevsky pursuant to CPLR [*5]3215 and an order of reference pursuant to RPAPL 1321 based on her failure to answer the amended complaint.

For the same reasons that summary judgment is denied to USBNA as against Pfeiffer, USBNA's motion for a default judgment against Chana Shereshevsky must also be denied. USBNA was required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing (U.S. Bank Nat. Ass'n v Poku,118 AD3d 980, [2nd Dept 2014] citing CPLR 3215[f]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2nd Dept 2014]). For reasons previously stated, Elliot's affidavit fails to provide proof of the defaulting party's default.

USBNA has determined that the defendant captioned as John Doe is not a necessary party. Through the affirmation of it counsel, USBNA has demonstrated that it did not served the commencement papers on John Doe.

Accordingly, that branch of its motion seeking to amend the caption by striking John Doe from the caption is granted (Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 [2nd Dept 2014] citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]).

U.S. Bank National Association as Legal Title Trustee for Truman 2013 SC3 Title Trust's motion for an order dismissing defenses asserted in defendant Shabsi Pfeiffer's answer pursuant to CPLR 3211(b) and granting summary judgment in its favor as against Pfeiffer pursuant to CPLR 3212 is denied.

U.S. Bank National Association as Legal Title Trustee for Truman 2013 SC3 Title Trust's motion for an order granting a default judgment against all other non-answering defendants pursuant to CPLR 3215 is denied.

U.S. Bank National Association as Legal Title Trustee for Truman 2013 SC3 Title Trust's motion for an order appointing a referee to compute pursuant to the RPAPL 1321 is denied.

U.S. Bank National Association as Legal Title Trustee for Truman 2013 SC3 Title Trust's motion for an order amending the caption by striking the John Doe defendant from the caption is granted.

The foregoing constitutes the decision and order of this Court.