This matter comes before the Court on cross-motions by the parties. Defendant Kayla Jones moves to confirm the Report and Recommendation of a Court Attorney-Referee who conducted an administrative hearing, after which he recommended that this case be dismissed based on Plaintiff's failure to bring a motion as directed. Plaintiff has opposed the defense motion and has cross-moved for partial summary judgment against defendant Jones.

Defendant's Motion. Pursuant to Administrative Order 4JD-018-2017, Plaintiff was direct to file a motion for order of reference or summary judgment on or before February 6, 2019. When no motion was filed, an administrative hearing was set for April 25, 2019. The letter scheduling the hearing specified that the hearing would be canceled if a motion for either order of reference or summary judgment was filed on or before the hearing date. The hearing was held on April 25, 2019, before Court Attorney-Referee James Doern. His Report and Recommendation was submitted to the Court on June 18, 2019. He recommended that this action be dismissed for Plaintiff's failure to file the appropriate motion. Defendant seeks confirmation of the Report and Recommendation and concomitant dismissal of this case.

Plaintiff's first argument in opposition is that Defendant's motion is untimely. Plaintiff points to the deadlines for making a motion to confirm or deny a referee's report found in CPLR 4403 and 22 NYCRR §202.44. While Plaintiff is correct that Defendant's motion comes well after the expiration of the 30-day deadline found in the CPLR and the court rule, CPLR 4403 specifies that a court is empowered to reject or approve a referee's report "on its own initiative." Early in the life of Rule 4403, it was held that there is no time deadline for a court to do so (Breland v. Motor Vehicle Accident Indem. Corp., 24 AD2d 881 [2d Dept 1965]).

Plaintiff's second argument is cogent. The Administrative Order that served as the basis for Plaintiff being directed to file a motion, and upon which the Report and Recommendation is based, conflicts with the CPLR in this case. Because Defendant served an Answer that disputes Plaintiff's ability to foreclose, a motion for order of reference was not available to Plaintiff (see RPAPL §1321). Therefore, the directive that Plaintiff file and serve a motion effectively required Plaintiff to bring a motion for summary judgment. However, Plaintiff correctly points out that under CPLR §3212(a), a summary judgment motion may be made any time between joinder of issue and a date after the filing of a note of issue — either as set by the court or 120 days.

Administrative orders cannot override the CPLR (see U.S. Bank Natl. Assn. v. Campbell, 202 AD3d 1137 [2d Dept 2022]). Because a note of issue has not yet been filed in this case, Plaintiff's time to bring a motion for summary judgment has not yet expired. This Court therefore rejects the recommendation of Court Attorney-Referee Doern that this case be dismissed for Plaintiff's failure to so move.

Plaintiff's Cross-Motion. Plaintiff cross-moves for an order granting "partial" summary judgment against defendant Kayla Jones. On a summary judgment motion, the moving party must carry the initial burden of proof, irrespective of the sufficiency of papers submitted in opposition (See, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). As the proponent of a summary judgment motion, Plaintiff bears the initial burden of making a prima facie showing of its entitlement to judgement as a matter of law by submitting sufficient evidence to show that no material issues of fact exist. If such a showing is made, then the burden of proof shifts to Defendant to produce evidence sufficient to establish the existence of material fact issues requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to Defendant as the non-moving party (See, e.g., Hanna v. St. Lawrence County, 34 AD3d 1146 [3rd Dept 2006]).

Plaintiff's submissions show that Plaintiff is the holder of the Note and a valid mortgage lien on the subject property, and that Defendant has defaulted by failing to make payments due commencing on December 1, 2017 and continuing to the date of the Complaint. The evidence submitted by Plaintiff is thus sufficient to make out Plaintiff's prima facie showing of entitlement to judgment as a matter of law (see e.g. Marshall v. Alaliewie, 304 AD2d 1032 [3d Dept 2003]).

Defendant has not offered any proof in opposition, but instead asks the Court to deny Plaintiff's motion without prejudice to allow time for Defendant to respond to Plaintiff's prior discovery demands. A party opposing summary judgment on the basis of outstanding discovery has the burden of showing that additional discovery might reveal material facts in the exclusive knowledge of the movant (see e.g. Bevens v. Tarrant Mfg. Co., Inc., 48 AD3d 939 [3d Dept 2008]). Defendant makes no attempt to carry that burden. Given Plaintiff's ability to make its prima facie showing for judgment and Defendant's failure to raise a question of fact in [*2]opposition, further discovery is rendered superfluous. Plaintiff's motion will be granted.

The parties' remaining contentions have been considered, but do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby

ORDRED, that the motion by defendant Kayla Jones to confirm the Report and Recommendation of the Court Attorney-Referee who conducted an administrative hearing in this case is denied; and it is further

ORDERED, that the cross-motion by Plaintiff seeking summary judgment against defendant Kayla Jones is granted and Plaintiff is hereby awarded summary judgment against Kayla Jones only.

Notice of Motion; Attorney Affirmation of R.P. Andrew McNee, Esq., with annexed exhibits; Notice of Cross-Motion; Affirmation of William Knox, Esq., with annexed exhibits; Memorandum of Law; Affirmation in Opposition and Reply of R.P. Andrew McNee, Esq. with annexed exhibit.