Upon the following papers read on this application for an order granting summary judgment, further amending the caption, default judgment and appointment of a referee; Notice of Motion dated January 24, 2018 and supporting papers 1-33; Notice of Cross Motion and supporting papers; Answering Affirmation and Affidavit dated March 23, 2018 and supporting papers 34-39; Reply Affirmation and supporting papers dated March 28, 2018 40-47; it is,

ORDERED that plaintiff M & T Bank's motion for full summary judgment against defendant [*2]Kevin Rice, dismissing his second and third affirmative defenses, striking his answer and for appointment of a referee to compute is granted; and it is further

ORDEREDthat plaintiff's M & T Bank's application to amend the caption add as defendant Stacey Rice, is granted and the caption shall appear as below:

Plaintiff,

plaintiff is to serve a copy of this order upon the Calendar Clerk within 30 days of this date and all further proceeding will be under the amended caption; and it is further

ORDERED that the default of all non-answering, non-appearing defendants are fixed and set; and it is further

ORDERED that plaintiff's application for the appointment of a referee to compute and determine pursuant to RPAPL § 1321 is granted; and it is further

ORDERED that plaintiff's proposed order submitted with this motion, as modified by the court, is to be signed contemporaneously with this order; and it further

ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further

ORDERED, that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.

ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further

ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, "plaintiff's submissions"; defendant(s) may submit written objections and proof in support thereof, "defendant's objections," to the referee within 14 days of the mailing of plaintiff's submissions; and it is further

ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further

ORDERED that the referee's duties are defined by this order of reference (CPLR 4311, RPAPL § 1321), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the [*3]premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant's objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further

ORDERED that if defendant's objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant's objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further

ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further

ORDERED that this action shall be calendared for a status conference on Wednesday, August 22, 2018at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further

ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.

This is an action to foreclose a mortgage on residential real property known as 38 Lenox Street, Lindenhurst, Suffolk County, New York ("the property") given by defendants Kevin Rice and Laura Rice ("mortgagors") to plaintiff M & T Bank 's ("plaintiff") predecessor in interest. Only defendant Kevin Rice ("defendant") filed an answer, co-mortgagor Laura Rice defaulted. Plaintiff previously moved for summary judgment dismissing defendant Kevin Rice's ("defendant") answer, appointment of a referee pursuant to RPAPL § 1321, fixing the default of the non-appearing, non-answering defendants, including defendant Laura Rice, and other ancillary relief (Mot. Seq. # 001). After oral argument on August 15, 2016, the court issued a decision on the record which, among other things, set and fixed the default of the non-answering, non-appearing defendants, including co-mortgagor Laura Rice, and granted plaintiff partial summary judgment dismissing defendant's first affirmative defense, but as questions of fact remained as to plaintiff's proof of mailing of the notices required by the mortgage and by RPAPL §1304 (defendant's second and third affirmative defenses), those issues were set for a limited issue trial pursuant to CPLR 2218.

Upon completion of discovery and filing of a note of issue, plaintiff filed a second motion for summary judgment addressing the issues set for the limited issues trial. By decision dated September 11, 2017, other than to authorize an amendment of the caption, the court denied the motion (Mot. Seq. #002). The court set the action down for a limited issue trial on December 1, 2017 at 9:30 AM as to the previously determined limited issues.

As a result of a faxed letter faxed to the court on December 1, 2017 by defendant's counsel indicating his sudden illness that day, the court issued an order that day adjourning the trial to April 6, 2018, 2018, but granting both parties the right to make a further successive motions for the summary judgment within 60 days of the date of the order, the reasons for that decision are set forth in the order of December 1, 2017.

Plaintiff submitted the present motion dated January 24, 2018 and returnable March 1, 2018. On March 1, 2018 the court received a faxed letter from defendant's counsel asking for an adjournment of the motion, which the court granted, over plaintiff's objection, by signing a copy of defendant's counsel's letter "SO ORDERED," adjourning the motion to March 29, 2018 and setting terms that defendant's [*4]opposition was to be served by March 22, 2018 and any reply by plaintiff was to be submitted by the return date. Defendant mailed his opposition on March 23, 2018, and plaintiff objected, but filed a timely reply. As the court agrees with the general principle of law that a case should be decided on its merits and not necessarily by the "niceties" of missing a time period by a delay of a day as here, especially as plaintiff had opportunity and did effectively respond, the court considers defendant's opposition to the motion.

Plaintiff's motion is granted as the affidavit and proof submitted has established the mailing of the notices required by the terms of the mortgage and the requirements of RPAPL § 1304. Defendant's second and third affirmative defenses are dismissed, and as the other affirmative defenses have previously been dismissed, defendant's answer is stricken, plaintiff is granted judgment on its complaint, plaintiff's application for the appointment of a referee to compute pursuant to RPAPL § 1321 is granted, plaintiff's applications to amend the caption to add Stacey Rice and set her default is addressed later in this decision.

Plaintiff has established the mailing of both the default notice required by the mortgage and the RPAPL § 1304 notices through the affidavit of Rachel M. Nowicki, an employee of plaintiff and the exhibits attached thereto. She establishes her ability to testify to plaintiff's business records pursuant to CPLR 4518, including those records relating to the mailing of each group of notices. Her testimony shows her familiarity with plaintiff's mailing process and procedures, to insure proper addressing and mailing of the notices, which she sets forth in detail, and relates that to the preparation and actual mailing to both mortgagors of the notice of default required by the mortgage on July 14, 2011 by regular mail and the mailing of the RPAPL § 1304 notices, by both regular and certified mail, to both of mortgagors on May 7, 2012. In support of her affidavit she attaches to it copies of the notices sent and also other records maintained by plaintiff that establish the mailings, including a copy of a mail book.

To establish mailing, plaintiff may provide proof of actual mailing or description of its office's practice and procedure for mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Citimortgage Inc. v Banks 155 AD3d 936 [2d Dept 2017]). Due proof of the mailing of the both types of notices can be established through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]); Citimortgage v Banks, 155 AD3d 936 [2d Dept 2017]). Here, affiant shows his familiarity with office practices and procedures, establishing those practices and procedures necessary to insure proper addressing and mailing (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]; US Bank v Henry, 157 AD3d 839 [2d Dept 2018]; Bank of NY Mellon v Zavolunov, 157 AD3d 754 [2d Dept 2018]; Bank of America, NA v Wheatley, 158 AD3d 736 [2d Dept 2018]; J.P. Morgan Mtge. Acquistion Corp v Kagan, 157 AD3d 875 [2d Dept 2018]). Plaintiff also provided proof of filing of the notices with the Department of Financial Services pursuant to RPAPL § 1306, which by itself is insufficient to establish the mailings, but has been held to be some additional evidence of their mailing (see Wells Fargo Bank, NA v Lewczuk, 153 AD3d 890 [2d Dept 2017]).

In opposition, defendant provides an affidavit that affirms that he never received either group of notices. This claim is insufficient to overcome the proof of mailing offered by plaintiff, which is sufficient to overcome defendant's simple denial of receipt of the notices (see Countrywide Home Loans, Inc. v Brown, 305 AD2d 626 [2d Dept 203], Groog v South Road Associates, LLP, 74 AD3d 1021 [2d Dept 2010]; Emigrant Mtge Co., Inc v Persad, 117 AD3d 676 [2d Dept 2014]; Flagstar Bank, FSB v [*5]Mendoza, 139 AD3d 898 [2d Dept 2016]).

Plaintiff moves at this time to amend the caption to add Stacey Rice as a defendant, submitting proof, by affidavit of service, of service of the summons and complaint upon her on November 26, 2012 by serving defendant at the property of and mailing her as "John Doe #1"as part of plaintiff's Exhibit "C." Although plaintiff may have submitted these documents with its prior motions, it never asked to amend the caption until plaintiff's second motion (Mot. Seq. #002) and at that time did not ask to add her as a defendant. Plaintiff's application to amend the caption to add Stacey Rice in substitution of the "John Doe" defendants is granted upon proof submitted (see US Bank, N.A. v Boyce, 93 AD3d 872 [2d Dept 2012]; Citimortgage, Inc v Chow Ming Tung, 126 AD3d 841 [2d Dept 2015]). The court will physically modify plaintiff's proposed amended caption in its submitted proposed order of reference to remove the irrelevant "defendants" apparently listed therein in error.

Plaintiff's application is granted and the proposed order submitted with this motion, as modified by the court, is signed contemporaneously herewith.

This constitutes the Order and decision of the Court.