Upon the letter of defendants' counsel dated June 26, 2017 for permission to file a motion to compel plaintiff to provided discovery, preclusion and to strike, and plaintiff's counsel's letter in opposition of the same date, and upon oral argument of counsel before the court on July 11, 2017;

Defendant Brian and Diana Tully's ("defendants") application for leave to file a motion to compel discovery, or in the alternative, preclude plaintiff from introducing evidence of certain facts or the testimony of certain witnesses, or in a further alternative to strike plaintiff U.S. Bank National Association, as Trustee for GSR Mortgage Loan Trust 2006-1F, Mortgage Pass-Through Certificates, Series 2006-1F's ("plaintiff') complaint is determined as follows:

ORDERED that defendants' application to compel discovery, including depositions, on the issue of plaintiff's standing to bring the action is denied; and it is further

ORDERED that defendants' application to compel further discovery on the issues of proof of defendants' default in payment under the note and mortgage, and plaintiff's compliance with the mailing requirements of the notices required by RPAPL § 1304 is granted, upon [*2]condition that defendants pay to plaintiff $500.00, to represent part of the expenses of plaintiff in presenting such witnesses as necessary for deposition; and it is further

ORDERED that the parties are to hold a phone conference with the court on August 2, 2017 at 2 PM to discuss possible dates for depositions at defendants' counsel's office; and it is further

ORDERED that the certification conference for this case is adjourned to September 13, 2017 at 9:30 AM, subject to the dates for depositions agreed to on August 2, 2017 and further applications to the court, if necessary.

This action to foreclose a mortgage on residential real property located in Suffolk County appeared for a certification conference this date, where claims and applications raised in a letter from defendant's counsel dated June 26, 2017, and a letter in response the same day by plaintiff's counsel, concerning alleged failure of plaintiff to comply with discovery of discovery issues were discussed on the record.

On January 9, 2017, after oral argument of plaintiff's motion for summary judgment (Mot. No. 001), the court issued a Discovery and Scheduling Order, having granted plaintiff partial summary judgment dismissing some of defendants affirmative defenses from the bench. The court set the matter for a limited issues trial on the remaining issues, plaintiff's proof of its standing to bring the action, proof of defendants default in payment under the note and mortgage, and proof of compliance with the mailing requirements of the notices required by RPAPL § 1304. The order authorized discovery on those three issues, directing that demands related to them be served within 30 days and that all discovery be completed within 120 days, setting a certification conference for May 24, 2017. The order also authorized both parties to make further summary judgment motions after the filing of the note of issue and but that no other motions could be made without permission of the court.

Through either a clerical error or a misunderstanding of the order, plaintiff made a "renewed motion for summary judgment" while discovery was still pending, necessitating a conference with the parties on March 21, 2017, after which an order encompassing the court's direction at that conference was issued on March 24, 2017.

The certification conference for May24, 2017 was adjourned by the court to June 28, 2017. Prior to that date the letters of June 26 were received by the court, and at the request of defendants' counsel, the certification conference was adjourned to July 11, 2017.

On July 11th, after arguments of counsel on the record, the court denied defendants' application for further discovery on the issue of plaintiff's standing to bring the action and for plaintiff to identify a person to be deposed on this issue. The decision of January 9, 2017 denied dismissal of defendants' first affirmative defense alleging plaintiff lacked standing. This was solely on the grounds that the proof submitted did not establish that the allonge, with indorsements, was firmly attached to the copy of the note attached to the complaint when filed. During the arguments of July 11th, plaintiff produced for inspection the original note which [*3]showed the undated allonge from the original lender, Bankers Mortgage Trust, Inc. ("Bankers") to Countrywide Bank, N.A. ("Countrywide") was firmly attached, and which showed on the back of the allonge the undated indorsement from Countrywide to Countrywide Home Loans Inc. ("Countrywide Home"), and a second undated, indorsement in blank from Countrywide Home. This was identical to the copy of the note attached to the complaint when filed with the Suffolk County Clerk, and filed in support of plaintiff's Mot. # 001. The court made no ruling on standing, but noted that a sufficient affidavit would provide proof of this fact in a subsequent summary judgment motion.

Plaintiff has standing if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v Larizza, 129 AD3d 904 [2d Dept 2015]; M & T Bank v Cliffside Prop. Mgt., LLC, 137 AD3d 876 [2d Dept 2016]). Plaintiff can demonstrate its standing by establishing that the note had been assigned to it prior to the commencement of the action by attaching a copy of the indorsed note to the complaint at the time the action was commenced (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Deutsche Bank Natl. Trust v Leigh, 137 AD3d 841 [2d Dept 2016]; JPMorgan Chase Bank, NA v Weinberger, 142 AD3d 643 [2d Dept 2016]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 AD3d 861 [2d Dept 2017]; Deutsche Bank Trust v Garrison, 147 AD3d 725 [2d Dept 2017]; Wells Fargo Bank v Thomas, 150 AD3d1312 [2d Dept 2017]; Deutsche Bank Natl Trust Co. v Carlin, __AD3d__, 2017 NY Slip Op 05421[2d Dept 2017]).

Despite arguments of defendants' counsel, there is no stated requirement that the authenticity of the note and attachment of the allonge be certified by an attorney, that is merely one method of proof noted in the cases cited above. Also, though argued by defendants' counsel, there is no requirement that plaintiff otherwise establish when and how it received a note undated and/or endorsed in blank, when attached to a complaint. A claim a holder of such a note must give factual details as to its physical delivery is without merit. An indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed. There is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (UCC 3-204[2]). Moreover, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date (see JPMorgan Chase Bank, NA v Weinberger, 142 AD3d 643 [2d Dept 2016] quoting from Aurora Loan Servs. v Taylor, 25 NY 355, 362 [2015]; see also Penny Mac Corp v Chavez, 144 AD3d 1006 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d 861 [2d Dept 2017]; Wells Fargo Bank, NA v Thomas, __AD3d__, 2017 NY Slip Op 04318 [2d Dept 2017]).

As plaintiff is relying upon this note, allonge and indorsements to establish its standing, it would be a waste of time and energy to have further discovery and depositions upon the issue of standing. If plaintiff's proof on a subsequent summary judgment motion fails, there will be a trial. Defendants' application for further discovery, including depositions, on the issue of standing is denied.

Defendant's application for further discovery, including depositions on the issues of proof of defendants' default in payment under the note and mortgage, and plaintiff's compliance with the mailing requirements of the notices required by RPAPL § 1304 is granted, upon condition that defendants pay to plaintiff $500.00, to defray part of the costs of plaintiff in presenting such witnesses as necessary for deposition. Such payment shall be made only at the time the first witness is produced for deposition. If there is more than one witness produced, or more than one deposition date, there will be no further payments, absent a subsequent order of the court based upon good cause. The depositions shall be held at the office of defendants' counsel's choosing, as counsel has more than one office location.

The court imposes this condition because of defendants disregard of its discovery order and policy, and the unnecessary delay caused thereby. As acknowledged by defendants' counsel in his letter of June 26 and in oral argument, his law firm waited two months before sending that letter asking for permission to make a motion to compel for what was felt to be inadequate discovery in received in April. Defendant's counsel himself characterized this as "law office failure," both in the letter and during oral argument. Counsel was aware of the court's requirement to complete discovery within the time limits given by the order of January 9, 2017, not only from that order, but also from the conference of March 21, 2017.

The parties are to hold a phone conference with the court on August 2, 2017 at 2 PM to discuss possible dates for depositions at defendants' counsel's office. The certification conference is adjourned to September 13, 2017 at 9:30 AM, subject to the dates for depositions agreed to on August 2, 2017 and further applications to the court, if necessary, pursuant to the condition of the order of January 9, 2017.

This constitutes the order and decision of the court.