Upon the following papers read on this motionto appoint referee and cross-motion to dismiss ; Notice of Motion and supporting papers 9-27 ; Notice of Cross Motion and supporting papers 29-33; Answering Affidavits and supporting papers34-35 ; [*2]Replying Affidavits and supporting papers36-37; it is,

ORDERED that the branches of the motion by the plaintiff which are for summary judgment, for an order appointing a referee to compute and amending the caption, and for leave to amend the notice of pendency are granted; and it is further

ORDERED that the branch of the motion by the plaintiff which is to strike the defendants' answer is denied; and it is further

ORDERED that the cross motion by the defendants for an order dismissing the complaint is denied; and it is further

ORDERED that Joan M. Genchi, Esq., P.O. Box 210, Port Jefferson Station, New York 11776, 631-942-8055, 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 she 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

ORDEREDthat, if the Referee is disqualified from accepting this appointment, she shall notify the appointing Justice forthwith; and it is further

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

ORDERED that, pursuant to CPLR 8003(a), the Referee's fee for the computation stage and the filing of her 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 12"; and it is further

ORDERED that the caption shall hereafter read as follows:

Plaintiff,

against-

Defendants.

ORDERED that, upon service on her of a certified copy of this order and payment of the appropriate fees, if any, the County Clerk shall file the amended notice of pendency in this action nunc pro tunc; and it is further

ORDERED that the plaintiff include in any proposed judgment of foreclosure and sale language complying with the Suffolk County local rule for the filing of the foreclosure-action-surplus-monies form contained in Suffolk County Administrative Order No. 41-13.

The plaintiff commenced this action to foreclose two mortgages on a vacant parcel of real property located in Holbrook, New York. The first mortgage was given to the plaintiff by the defendant 481 Furrows Road, LLC (the "LLC"), to secure a loan in the principal amount of $125,000. The second mortgage was given to Anthony Ivanditto by the LLC, to secure a loan in the principal amount of $200,000. Both loans were evidenced by promissory notes dated April 7, 2010, and they were guaranteed by the defendant Daniel Mahoney. By letters dated July 21, 2016, and August 11, 2016, the defendants were advised that they were in default by failing to make payments on the notes when due. On September 12, 2016, Anthony Ivanditto assigned the second loan to the plaintiff. This action was commenced on October 3, 2016.

The plaintiff has established, prima facie, its entitlement to judgment as a matter of law by producing the mortgages, the promissory notes and guarantees, and evidence of default (see, Signature Bank v Galit Properties, Inc., 80 AD3d 689; Republic Natl. Bank of NY v O'Kane, 308 AD2d 482).

In opposition to the plaintiff's motion and in support of their cross motion, the defendants contend that the plaintiff lacks standing because it has failed to establish that it was in possession of the original notes when this action was commenced. The defendants contend that the affidavit of merit by the plaintiff, David Ivanditto, cannot be used to establish standing because it is not in admissible form. The plaintiff's affidavit is labeled as an affidavit and begins, "David Ivanditto, being duly sworn, deposes and says[.]" It is signed by the plaintiff and duly notarized. Although the notary's jurat omits the customary language that the document was sworn to before the notary, it contains language that the plaintiff "acknowledged" the document and that he executed the same. The court finds that, under these circumstances, the document is acceptable as an affidavit (see, NYCTL 2005-A Trust v Rosenberger Boat Livery, Inc., 96 AD3d 425; Sparaco v Sparaco, 309 AD2d 1029, 1030). It establishes that the plaintiff was in physical possession of the originals of both notes prior to the commencement of this action. Moreover, the assignment of the second mortgage contains language that the assignment included "the bond or note or obligation described in said mortgage." Accordingly, the court finds that the plaintiff has standing to prosecute this action.

The defendants contend that this action is premature because the plaintiff has failed to comply with a condition precedent to commencing it. The defendants contend that the mortgages, notes, and guarantees require that they be given 30 days' written notice to cure any default and that the 30-day cure period does not begin to run until the notices are properly sent. The notes and mortgages specify that notices be sent to 481 Furrows Rd., Holbrook, NY, the property address, and that they be sent by personal service; Federal Express; or certified or registered mail, return receipt requested. The record reflects that notices of default were sent to the LLC and Daniel Mahoney at 9 Devon Road, Holbrook, NY, and that they were sent by certified mail, but not return receipt requested.

The notes provide that the plaintiff "may declare the entire unpaid amount of principal and interest under this Note to be immediately due and payable upon the occurrence of any event of default under the Mortgage securing this Note, beyond any applicable grace period provided for herein or in said Mortgage." The notes do not provide for any grace periods, but incorporate by reference the grace periods found in the mortgages.

The mortgages provide, in pertinent part, as follows:

"2.01 The whole of the principal indebtedness evidenced by the Note and all accrued interest immediately shall become due and payable, at the option of Mortgagee...upon the happening of any one or more of the following Events of Default:

"(a) If default shall be made in the payment of any principal or interest to be paid under the Note, when and as the same shall become due and payable, or if default shall be made, and shall have continued for a period of ten (10) days, in the payment of any other amount due under the Note or this Mortgage, when and as the same shall become due and payable as in the Note or this Mortgage provided; or

* * *

"(c) If default shall be made in the due payment, observance or performance of any other term, covenant or condition on the part of Mortgagor in the Note or in this Mortgage contained, and such default shall have continued for a period of thirty (30) days after written notice thereof shall have been given by Mortgagee to Mortgagor, or if any representation made by Mortgagor in this Mortgage shall be incorrect[.]"

The defendants defaulted on the first note by failing to pay the principal and interest due when the note matured and that the defendants defaulted on the second note by failing to make monthly payments of principal and interest. Both defaults were defaults in the payment of principal and interest under § 201 (a) of the mortgages for which there is no grace period and for which no notice is required. Section 201 (c), upon which the defendants rely, requires 30 days' written notice of a default in the "payment, observance or performance of any other term, covenant or condition...in the Note or in [the] Mortgage (emphasis added)." Thus, contrary to the defendants' contentions, the 30-day grace period found in § 201 (c) of the mortgages is inapplicable to the facts of this case. Moreover, the notes expressly provide that the defendants waived "presentment for payment, demand, protest, notice of protest, notice of nonpayment, and notice of dishonor."

The guarantees provide that the guarantor's liability to the lender matures after 30 days' written notice to the guarantor of the occurrence of a default under the notes. Nothing in the guarantees specifies how or where notices are to be sent, nor do the guarantees incorporate by reference the terms found in the other loan documents regarding the sending of notices. Thus, the notices of default sent to 9 Devon Road, Holbrook, NY, by certified mail on July 21, 2016, and August 11, 2016, more than 30 days before this action was commenced on October 3, 2016, satisfied any condition precedent to commencing an action against the guarantor. Moreover, like the notes, the guarantees expressly provide that the guarantor waived "notice of presentment for payment, demand for payment, notice of non-payment and dishonor, protest and notice of protest, of any of Borrower's obligations," as well as "notice of the failure of any person, firm or corporation to pay to Lender any indebtedness held by Lender as collateral security for any obligation of Borrower."

Accordingly, the court finds that, despite the defendants' claims of irregularities in the mailing of the notices of default, any defects in the mailing do not constitute a defense to this foreclosure action. The mailing of default notices was either waived or not required under the terms of the loan documents and, therefore, not a condition precedent to commencing an action (see, East West Bank v 32 Tower, LLC, 33 Misc 3d 1221[A] at *3-*4). In any event, the notices that were sent satisfied any condition precedent under the terms of the guarantees. [*3]Moreover, even if the notices had been sent to 481 Furrows Rd., Holbrook, NY, they would have been undeliverable. That address is the property address, which is vacant land.

The defendants contend that Daniel Mahony's guarantee of the second loan was never assigned by Anthony Ivanditto to the plaintiff. The defendants, therefore, contend that the plaintiff does not have standing to enforce the second guarantee and that Anthony Ivanditto is a necessary party whose absence requires dismissal of the action.

Personal guaranties are contracts governed by general principles of contract law (Hayden Asset V, LLC v JGBR, LLC, 44 Misc 3d 1220[A] at *5). Unless prohibited by the terms of a contract, contractual rights and remedies, including those in guarantees, are assignable and may be effected by a writing evincing an intent to assign the right in question (Id.). Personal guarantees, however, are secondary obligations, and the parties' rights and duties under a guarantee derive from the principal obligation (Id.). Because of a guarantee's link to the principal obligation, an obligee's assignment of the principal obligation is sufficient to manifest the requisite intent to assign the guarantee absent some prohibitory term in the guarantee itself (Id.).

As previously discussed, the plaintiff's affidavit and the assignment of the second mortgage are sufficient to establish the plaintiff's standing as the transferee of the second note. The transfer of the second note to the plaintiff was sufficient to effect a transfer of the guarantee, which is a secondary obligation. Nothing in the guarantee prohibits its assignment. In fact, the language of the guarantee clearly evinces an intent to allow its assignment. The guarantee provides, in pertinent part, "This guaranty...is binding upon the guarantors, their successors, assigns and their respective legal representatives, and shall inure to the benefit of the Lender, its successors and assigns (emphasis added)." The court finds that, under these circumstances, the failure of the plaintiff to produce a written assignment of the guarantee of the second note does not render the plaintiff's standing questionable or rebut the plaintiff's prima facie showing (Id.). Accordingly, the court finds that Anthony Ivanditto is not a necessary party to this action.

In view of the foregoing, there is no need for any discovery. Accordingly, the plaintiff's motion for summary judgment is granted to the extent indicated, and the defendants' cross motion to dismiss is denied.