On September 12, 2017, Justice Ash of the Kings County Commercial Division issued a decision in 531 Kosciusko Partners, LLC v. Montesdeoca, 2017 NY Slip Op. 31931(U), granting a motion for reargument and, on reargument, granting summary judgment, explaining:
Upon consideration of the foregoing, the Court finds that reargument is warranted. In the 2017 Summary Judgment Denial Order, the Court overlooked the fact that the Hudson and Suarato Affidavits were not proffered when the First Summary Judgment Denial Order was decided. Therefore, the determination therein that Plaintiff failed to submit admissible evidence establishing Montesdeoca’s default under the terms of the note and mortgage did not apply to the Hudson and Suarato Affidavits. In addition, the Court overlooked the procedural history of this case when determining that Plaintiff’s motion was untimely for being filed past the October 14, 2015 deadline set forth in the Preliminary Conference Order.
Upon reconsideration of the parties’ submissions, the Court finds that Plaintiff’s motion for summary judgment was not untimely. The October 14, 2015 deadline was rendered impracticable given the procedural history of the case, namely, Defendant Borrowers’ failure to appear for court appearances during a brief period of time and Plaintiff’s subsequent attempt to obtain a default judgment as a result. Because Plaintiff filed the second summary judgment motion prior to the note of issue deadline, it cannot be deemed to be untimely. With regards to the substance of Plaintiff’s motion for summary judgment, it is well established that entitlement to summary judgment in favor of the foreclosing plaintiff is established, prima facie by the plaintiff’s production of the mortgage and the unpaid note, and evidence of default in payment. Based on the First Summary Judgment Denial Order, the only disputed issue before the Court is whether Plaintiff has established Defendant Borrowers’ purported default under the terms of the note and mortgage with admissible proof. In this regard, the Court finds that the affidavits submitted lay the necessary foundation under CPLR 4518(a) to admit the Joan payment history and establish the Defendant Borrowers’ default in payment. Contrary to Defendant Borrowers’ contentions, the Hudson and Suarato Affidavits provide the necessary evidentiary foundation to admit the records. Among other things, both Mr. Hudson and Ms. Suarato attest to Montesdeoca’s default based upon review of payment records kept in the regular course of the loan servicer’s business which were maintained or created in furtherance of its servicing responsibilities and which actually evince the facts underlying Montesdeoca’s default.
(Internal quotations and citations omitted).