Upon the following papers numbered read on this motion for an order granting summary judgment and order of reference; Notice of Motion and supporting papers, NYSCEF Docs #32 -45; Answering Affidavits and supporting papers __ ; Replying Affidavits and supporting papers ___; it is

ORDERED that this unopposed motion by plaintiff for an order striking the answer and affirmative defenses of the defendant, Mary E. Hauser, awarding it summary judgment, appointing a referee to compute, granting default judgment against the non-appearing and non-answering defendants, and amending the caption, is granted to the extent that plaintiff is granted partial summary judgment as to defendant Mary E. Hauser dismissing her first, third, fourth and fifth affirmative defenses; and it is further

ORDERED that as upon the proof submitted plaintiff has failed to establish strict compliance with the notice requirement of RPAPL § 1304; defendant's second affirmative defense cannot be dismissed; and it is further

ORDERED that portion of plaintiff's motion to replace the "John Doe and Jane Doe #1 through #7" with "Mark" Hauser and amend the caption is granted upon the proof submitted and [*2]the caption shall now appear as follows:

Plaintiff,

-against-

Defendant(s).

ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further

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

ORDERED that in all other respects, plaintiff's motion is denied; and it is further

ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL§ 1321 is denied and its proposed order submitted with this motion is marked "Not Signed"; and it is further

ORDERED that rather than set the issues surrounding defendant Mary Hauser's second affirmative defense for a trial pursuant to CPLR § 2218, R 3212 (e) and (g), the court grants plaintiff the right to file a successive motion for summary judgment as to those issues within 120 days of the date of this decision and order; and it is further

ORDERED that a conference is scheduled for Wednesday, January 23, 2019 at 9:30 AM in Part 27 to monitor the progress of the action; 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 conference at which future compliance will be determined.

This is an action to foreclose a mortgage on residential real property known as 8 Jordan [*3]Court, Dix Hills, Suffolk County, New York. Plaintiff commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk on May 5, 2015. Defendant Mary E. Hauser ("defendant") interposed an answer dated June 10, 2015 consisting of general denials and five affirmative defenses including plaintiff's lack of standing to commence the action (third, and arguably, fourth and fifth affirmative defenses), and failure to comply with the notice provisions of RPAPL § 1304 (second affirmative defense). Defendant Workers' Compensation Board of New York State filed a notice of appearance dated May 18, 2015, none of the remaining defendants answered or appeared and are in default.

According to court records a foreclosure settlement conference was held February 8, 2016 at which time the action was released to an IAS Part, thus there has been compliance with CPLR 3408.

Plaintiff now moves for an order striking the answer and defenses of defendant, granting summary judgment, amending the caption, fixing the default as against the non-appearing defendants and for an order of reference appointing a referee to compute pursuant to RPAPL § 1321. The submissions in support of its motion include its attorney's affirmations, affidavit in support of summary judgment of plaintiff's representative, the note, mortgage, assignments, pleadings, and the affidavits of service of process. Defendant does not oppose the motion.

Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage, the unpaid note, and evidence of default in payment (see Wells Fargo Bank, N.A. v. DeSouza, 126 AD3d 965 [2d Dept 2015]; Wells Fargo, NA v Erobobo, 127 AD3d 1176 [2d Dept 2015]; Wells Fargo Bank, NA v Morgan, 139 AD3d 1046 [2d Dept 2016]). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment (CPLR 3212; RPAPL § 1321; see Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2d Dept 1997]). The burden then shifts to defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense (see Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept 2010], Zanfini v Chandler, 79 AD3d 1031 [2d Dept 2010]; Citibank, NA v Van Brunt Properties, LCC, 95 AD3d 1158 [2d Dept 2012]). Defendant must then produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Defendant's answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]). In deciding the motion the court is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v Restani Corp., 18 NY3d 499 [2012]).

Where plaintiff's standing has been placed in issue by defendant's answer, as here by defendant's second and third affirmative defenses, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 [2015]; Loancare v. Firshing, 130 AD3d 787 [2d Dept 2015];US Bank,, NA v Richard, 151 AD3d 1001 [2d Dept 2017]; Nationstar Mtge., LLC v Laporte, 162 AD3d 784 [2d Dept 2018]; Bank of New York Mellon v. Suhku, 163 AD3d 748 [2d Dept 2018]; Wells Fargo Bank, N.A. v Inigo, _AD3d_, [*4]2018 NY Slip Op 05621 [2d Dept 2018]).

In addition, where defendant has properly asserted non-compliance with the notice requirements of RPAPL §1304 as a defense (second affirmative defense), plaintiff must adduce due proof that the pre-action foreclosure 90 day notice requirements have been satisfied to establish it's prima facie entitlement to summary judgment (see PHH Mtge. Corp. v. Celestin, 130 AD3d 703 [2d Dept 2015]; Bank of New York v Aquino, 131 AD3d 1186 [2d Dept 2015]; Cenlar FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; Zarabi v. Movahedian, 136 AD3d 895 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, 142 AD3 536 [2d Dept 2016]; Aurora Loan Svcs, LLC v Baritz, 144 AD3d 618 [2d Dept 2016]; U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]).

Although defendant has abandoned her first affirmative defense (a claim of lack of service) by failing to oppose the motion,(see Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975]; Kronick v L. P. Therault Co., Inc., 70 AD3d 648 [2d Dept 2010]; New York Commercial Bank v. J. Realty F. Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v. City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]), it would have been dismissed in any event, as she failed to move on that claim within 60 days of serving the answer, waiving it (CPLR 3211 [e]; see Generation Mtge. C. v Medina, 138 AD3d 688 [2d Dept 2016]; Wells Fargo Bank, N.A. v Cajas, 159 AD3d 997 [2d Dept 2018]).

Plaintiff in a residential foreclosure action 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]). Here, plaintiff demonstrates its standing as holder of the note by establishing that it 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]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 AD3d 861 [2d Dept 2017]; CitiMortgage, Inc. v McKenzie, 161 AD3d 1197 [2d Dept 2018]; Nationstar Mtge, LLC v LaPorte, 162 AD3d 784 [2d Dept 2018]; Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d 522 [2d Dept 2018])). Defendant's third through fifth affirmative defenses addressing lack of standing are dismissed.

As indicated above, where defendant's answer has raised as an affirmative defense of non-compliance with the notice requirements of RPAPL § 1304, plaintiff must adduce proof that the pre-action foreclosure 90 day notice requirements have been satisfied as part of it's prima facie entitlement to summary judgment.

Due proof of the mailing of the RPAPL § 1304 notices ("the notices") is established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v Persad, 117 AD3d 676 [2d Dept 2014]; Bank of NY Mellon v Aquino, 131 AD3d 1186 [2d Dept 2015]; Citibank, N.A. v [*5]Wood, 150 AD3d 813 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]), an affidavit of mailing (see JPMorgan Chase Bank, NA v Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946 [2d Dept 2015]), or 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]). 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, supra; Citimortgage Inc. v Banks 155 AD3d 936 [2d Dept 2017]). Additionally, internal computer tracking records of plaintiff, supplied by an affiant able to testify as to sender's business records pursuant to CPLR 4518 (a) which show the notices were mailed, have been held sufficient to demonstrate that the notices were indeed mailed to defendant (see One West Bank, FSB v Simpson, 148 AD3d 920 [2d Dept 2017]; Citimortgage, Inc. v Wallach, 163 AD3d 520 [2d Dept 2018]).

Here, even if plaintiff's affiant established his/her ability to testify as to the business records of his/her employer, Ocwen Loan Services ("Ocwen"), and that Ocwen had authority as servicer for plaintiff to mail the notices to defendant, his/her affidavit is insufficient to establish those mailings. The affidavit consists merely of unsubstantiated and conclusory statements, along with dated copies of the notices purportedly sent; such a submission has been held to be insufficient proof of mailing (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar FSB v Censor, 139 AD3d 781 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]; Wells Fargo Bank, N.A. v Mandrin, 160 AD3d 1014 [2d Dept 2018]; US Bank, NA v Henderson, 163 AD3d 601[ 2d Dept 2018]). To establish that Ocwen had an office practice and procedure to insure proper mailing, the affiant must show his/her familiarity with those practices and procedures, which this affidavit failed to do (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]; J.P. Morgan Mtge. Acquisition Corp v Kagan, 157 AD3d 875 [2d Dept 2018]; Bank of America, NA v Wheatley, 158 AD3d 736 [2d Dept 2018]; US Bank, NA v Henderson, 163 AD3d 601[ 2d Dept 2018]).

Although multiple summary judgment motions are discouraged without a showing of newly discovered evidence or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v McDonald's Restaurants of New York, Inc, 198 Ad2d 208 [2d Dept 1993]; Valley National Bank v INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]; Kolel Damsek Eliezer, Inc. v Schlesinger, 139 AD3d 810 [2d Dept 2016]). It is clearly appropriate to consider a second summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few, or where such a motion would correct a simple defect, [*6]eliminating the burden on judicial resources which would otherwise require a trial (see Rose v Horton Med. Ctr., 29 AD3d 977 [2d Dept 2006]; Landmark Capital Investments, Inc. v Li-Shan Wang, 94 AD3d 418 [1st Dept 2012]). The denial of a subsequent summary judgment motion which could be dispositive for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017]).

Here, rather than setting this action for a trial pursuant to CPLR § 2218, R 3212 (e) and (g) of the remaining issue raised by defendant's second affirmative defense, the court exercises its discretion and authorizes plaintiff to file a successive motion for summary judgment as to that affirmative defense within 120 days of the date of this decision and order. In doing so the court is mindful of the reasons for allowing such a successive motion set forth in the proceeding paragraph, and recognizes that the interests of all parties, as well as the court, are better served by resolving that issue by a motion rather than a trial; but if plaintiff is unsuccessful on that motion or fails to timely submit the motion, no further summary judgment motions will be authorized.

Plaintiff's proposed order is marked "not signed."

A conference is scheduled for Wednesday, January 23, 2019 at 9:30 AM in Part 27 to monitor the progress of the action.

This constitutes the Order and decision of the Court.