The facts and some of the procedural history of this action are set forth in the Decision and Order of this Court (Pritzker, J.), dated March 7, 2017, which is incorporated herein by reference. Briefly, this is an action to foreclose a mortgage on parcels of real property owned by Thomas Eliopolous and Mary Ellen Eliopolous in the Town of Argyle and the Town of Putnam, Washington County, New York. Plaintiff commenced the instant action by the filing of a notice of pendency, summons and complaint on May 9, 2016. Defendants Thomas Eliopolous and Mary Ellen Eliopolous moved to dismiss the complaint. By Decision and Order dated March 7, 2017, this Court (Pritzker, J.) denied the motion. Defendants Thomas Eliopolous and Mary Ellen Eliopolous subsequently served an answer, dated March 20, 2017. By their answer, defendants Thomas Eliopolous and Mary Ellen Eliopolous deny the material allegations set forth in the complaint or deny knowledge or information sufficient to form a belief as to the allegations, and assert six affirmative defenses. The remaining defendants have neither appeared nor answered herein.

On or about June 9, 2017, defendant Thomas Eliopolous died. By order dated November 8, 2017, Mary Ellen Eliopolous, Executrix of the Estate of Thomas Eliopoulos, was substituted as a defendant in this action, in place and stead of defendant Thomas Eliopolous and the pleadings were amended to substitute the name of Mary Ellen Eliopolous, Executrix of the Estate of Thomas Eliopoulos, as a defendant in this action, in place and stead of defendant Thomas Eliopolous.

Plaintiff moves for an order: pursuant to CPLR 3212, granting summary judgment against defendants Mary Ellen Eliopolous, Executrix of the Estate of Thomas Eliopoulos, and Mary Ellen Eliopolous ("defendants"), and striking their answer; pursuant to CPLR 3215, granting default judgment against the non-answering and non-appearing defendants Dominic Santaite and Glenburnie Club, Inc.; pursuant to RPAPL §1321, appointing a referee to compute the amount due under the mortgage being foreclosed and to determine whether the mortgaged premises should be sold as one or more parcels; and dismissing defendants John Doe No. 1 through John Doe No. 100 and amending the caption accordingly. Defendants oppose the motion and cross-move for an order, granting defendants partial summary judgment pursuant to CPLR 3212 or, in the alternative, to consolidate this action with an action commenced by Dominic Santaite against defendants and others, which is pending in Washington County, under Index Number 26612/16. In its reply, plaintiff also requests that the Court render an order sua sponte (a) reforming plaintiff's mortgage to include parcels identified as Tax Map Nos. 8-1-1.3 and 8-1-2 ("Lots 1.3 and 2") in its legal description, (b) declaring nunc pro tunc that plaintiff's mortgage was recorded as a lien against Lots 1.3 and 2 at the time it was made and prior to a mortgage given by defendants to defendant Dominic Santaite ("the Santaite mortgage") or, in the alternative, (c) granting plaintiff leave to amend the pleadings to include causes of action to reform the mortgage to include Lots 1.3 and 2 in its legal description and to quiet title with respect to the priority of the mortgage and the Santaite mortgage.

In deciding the motion, the Court has reviewed and considered the following: the affirmation of Timothy P. McElduff, Jr., Esq., dated November 30, 2017, with exhibits, the affidavit of Cynthia B. Moran, sworn to November 29, 2017, with exhibits, and plaintiff's memorandum of law, dated November 30, 2017, in support of the motion; the affidavit of John F. Harwick, Esq., sworn to January 19, 2018, and the affidavit of Mary Ellen Eliopolous, sworn to January 19, 2018, with exhibits, in opposition to the motion and in support of the cross-motion; and the reply affirmation of Timothy P. McElduff, Jr., Esq., dated February 8, 2018, and [*2]the reply affidavit of Cynthia B. Moran, sworn to January 31, 2018, with exhibits, in further support of the motion.

The Court will first address plaintiff's application to reform plaintiff's mortgage to include Lots 1.3 and 2 in its legal description and to declare nunc pro tunc that plaintiff's mortgage was recorded as a lien against Lots 1.3 and 2 at the time it was made and prior to the Santaite mortgage.

The Notice of Pendency filed in this action includes Lots 1.3 and 2 in the property addresses listed as being subject to the Notice. Similarly, the complaint filed and served in this action specifically states that the premises being foreclosed in this action include Lots 1.3 and 2. Most significantly, the subject mortgage (Commercial Mortgage, Security Agreement and Fixture Financing Statement) executed by defendants, dated January 13, 2012, states that it was given to partially secure "a certain Mortgage note, of even date herewith, in the principal amount of $160,000 executed by [defendants] (the 'Note')" and specifically states that defendants were mortgaging parcels of land "located at Lots 1.3, and 2, in Block No. 1, Section 8, in the Town of Argyle more fully described in Exhibit A attached hereto and made a part hereof " On January 13, 2012, defendants also signed a Notice of Right to Counsel which states that plaintiff's predecessor, the lender Neptune Issue, Inc., had agreed to lend defendant money "secured by a mortgage, against the property commonly known as Lots 1.3 and 2, in Block No. 1, Section 8, in the Town of Argyle " Finally, on January 13, 2012, the same date they executed the mortgage, defendants also signed a Commercial Mortgage Note which specifically states the Note is secured by "Lots 1.3 and 2, in Block No. 1, Section 8, in the Town of Argyle, " Thus, the subject loan documents clearly reflect that plaintiff and defendants intended that Lots 1.3 and 2 would be subject to the mortgage. Defendants cannot claim to be substantially prejudiced by any reformation of the mortgage to include Lots 1.3 and 2 in the legal description. Thus, the Court can grant such relief, although it was not specifically demanded in the complaint (see CPLR 3017 [a]; see also Ressis v Mactye, 98 AD2d 836, 837 [3d Dept 1983]; Torre v Giorgio, 51 AD3d 1010, 1011 [2d Dept 2008] [pursuant to CPLR 3017 [a], court may grant undemanded relief if no substantial prejudice to adverse party, citing Ressis]).

It is well settled that in proper circumstances, mutual mistake may provide the basis for reforming a written instrument that does not reflect the actual agreement reached between the parties (see, e.g., Weed v Weed, 222 AD2d 800, 801 [3d Dept 1995]). In the case at bar, the legal description in the mortgage does not include Lots 1.3 and 2. However, as set forth herein, the loan documents, including other provisions of the mortgage, make clear that the parties intended that Lots 1.3 and 2 would be subject to the mortgage. Therefore, plaintiff is entitled to reformation of the mortgage to accurately reflect the parties' agreement (see Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1227 [2d Dept 2014]; McPherson v Goldstein, 256 AD 1006, 1006 [2d Dept 1939]). Further, plaintiff is entitled to a declaration nunc pro tunc that the mortgage was recorded as a lien against Lots 1.3 and 2 at the time it was recorded, on December 10, 2012, which is prior to the Santaite mortgage (which was made on August 13, 2013 and recorded on September 18, 2013).

Plaintiff established its entitlement to summary judgment, by producing the mortgage and unpaid note, along with evidence of defendants' default in payments. Such proof was sufficient to demonstrate plaintiff's prima facie entitlement to judgment as a matter of law, thereby shifting the burden to defendants to raise a question of fact as to a bona fide defense to foreclosure. (Chase Home Fin., LLC v Howland, 149 AD3d 1405 [3d Dept 2017]; see also, e.g. [*3]Citibank, NA v Abrams, 144 AD3d 1212, 1214 [3d Dept 2016]).

In opposition to the motion, defendants argue that plaintiff's motion should be denied, pursuant to CPLR 3212 [f], as further discovery is needed to determine the amount of payments made and received by the lender. In addition, defendants argue that, at a minimum, an issue of fact exists with respect to whether plaintiff has a valid first lien on two parcels.

The Court has considered, and rejects, defendants' contention that summary judgment is premature as further discovery is needed.

"[W]hile it is true that a motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party, a party's mere hope or speculation that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient to postpone determination on the motion" (Citibank, NA v Abrams, 144 AD3d at 1213—14 [internal quotation marks and citations omitted]).

"A party who opposes summary judgment on the ground that the moving party has exclusive knowledge and possession of pertinent facts that can be revealed through further discovery 'must make an evidentiary showing to support that conclusion' " (Ivory Dev., LLC v Roe, 135 AD3d at 1223—24, quoting 2 N. St. Corp. v. Getty Saugerties Corp., 68 AD3d 1392, 1395—1396 [3d Dept 2009], lv. denied 14 NY3d 706 [2010]; accord Bailey v. Dimick, 129 AD3d 1165, 1166 [3d Dept 2015]; see CPLR 3212 [f]). Here, defendants have not offered any evidence to demonstrate that discovery is needed with respect to the amount of payments made by defendants, particularly since plaintiff provided defendant with a complete loan payment history. Moreover, a dispute as to the exact amount owed by the mortgagor to the mortgagee may be resolved after a reference pursuant to RPAPL 1321 and does not preclude the issuance of summary judgment directing the sale of the mortgaged property (Orchard Hotel, LLC v D.A.B. Group, LLC, 106 AD3d 628, 630 [1st Dept 2013]; Long Is. Sav. Bank, F.S.B. v Denkensohn, 222 AD2d 659, 660 [2d Dept 1995].)

Defendants also argue that a question of fact exists with respect to whether plaintiff has a valid lien on Lots 1.3 and 2. This argument is unavailing, in light of the parties' clear intention to include Lots 1.3 and 2 in the mortgage and the Court's decision on plaintiff's application to reform the mortgage. Defendants have not offered any argument in support of the affirmative defenses set forth in their answer which are, therefore, waived (see NY Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 757 [2d Dept 2013]).

Defendants have failed to meet their burden to raise a question of fact as to a bona fide defense to foreclosure and plaintiff's motion for summary judgment against defendants is granted. Such relief is not precluded by plaintiff's request to reform the mortgage or for leave to amend the pleadings (see Wells Fargo Bank, NA v Ambrosov, 120 AD3d at 1226-27),

Plaintiff has demonstrated its entitlement to a default judgment against the non-answering and non-appearing defendants Dominic Santaite and Glenburnie Club, Inc. by submitting proof of service of the summons and complaint upon those defendants, proof of the facts constituting the claim, defendants' default and the amount due by affidavit made by the party (see CPLR 3215 [f]).

Defendants have failed to set forth any basis upon which the Court should dismiss the liens on Lots 1.3 and 2. Further, the Court does not find, in the exercise of its discretion, that this action and the action pending in Washington County under Index No. 26612/16, which was commenced by defendant Santaite and involves Lots 1.3 and 2, should be consolidated. The two [*4]actions appear to be at different stages of litigation and thus, consolidation would not "tend to avoid unnecessary costs or delay" (CPLR 602 [a]) and, in fact, would likely cause delay and prejudice to plaintiff, which has not been named as a party in the other action. In addition, while Lots 1.3 and 2 are involved in both actions, the mortgaged premises in each action is not identical and the rights of the parties in Lots 1.3 and 2 can be decided in this action.

Accordingly, it is hereby

ORDERED that plaintiff's motion is granted; and it is further

ORDERED that plaintiff's mortgage is reformed to include parcels identified as Tax Map Nos. 8-1-1.3 and 8-1-2 in its legal description; and it is further

ORDERED and declared nunc pro tunc that plaintiff's mortgage was recorded as a lien against Lots 1.3 and 2 at the time it was recorded and prior to the Santaite mortgage; and it is further

ORDERED that defendants' cross-motion is denied; and it is further

ORDERED that all other contentions and alternative forms of relief sought are hereby denied as academic in light of the Court's decision.

Plaintiff's proposed Order, as modified by the Court, has been signed concurrently herewith.

The within constitutes the Decision and Order of this Court.

Signed this 25th day of June, 2018, at Lake George, New York.