| US Bank, N.A. v Boyce |
| 2012 NY Slip Op 02098 [93 AD3d 782] |
| March 20, 2012 |
| Appellate Division, Second Department |
| US Bank, N.A., Appellant, v Amanda Boyce et al.,Respondents, et al., Defendants. |
—[*1]
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Cohalan, J.), dated November 4, 2010, which denied its motion pursuantto RPAPL 1321 for an order of reference and for leave to amend the caption to delete thedefendants sued herein as "John Does" and "Jane Does."
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion pursuantto RPAPL 1321 for an order of reference and for leave to amend the caption to delete thedefendants sued herein as "John Does" and "Jane Does" is granted.
The Supreme Court improperly denied that branch of the plaintiff's motion which waspursuant to RPAPL 1321 for an order of reference on the ground that the plaintiff had not filedan attorney affirmation in accordance with Administrative Order 548/10, which was issued by theChief Administrative Judge of the State of New York on October 20, 2010. Administrative Order548/10 (hereinafter the Administrative Order), which has since been replaced by AdministrativeOrder 431/11, requires the plaintiff's counsel in a residential mortgage foreclosure action to filewith the court an affirmation confirming the accuracy of the plaintiff's pleadings. In casespending on the effective date of the Administrative Order, where no judgment of foreclosure hasbeen entered, the attorney affirmation is required to be filed at the time of filing of either theproposed order of reference or the proposed judgment of foreclosure (see AdministrativeOrder 548/10, replaced by Administrative Order 431/11).
This mortgage foreclosure action was pending at the time of the effective date of theAdministrative Order, and the plaintiff filed its proposed order of reference on September 29,2009, approximately 13 months before the Administrative Order was issued. Thus, the plaintiffcould not have filed the attorney affirmation pursuant to the Administrative Order when it filedits proposed order of reference. Based on the plain language of the Administrative Order, theplaintiff is therefore required to file the attorney affirmation at the time it files the proposedjudgment of foreclosure.
Furthermore, the defendants failed to answer within the time allowed, and the plaintiffsubmitted, in support of its motion, the mortgage, the underlying unpaid note, the complaintsetting forth the facts establishing the claim, and an affidavit of its employee attesting to thedefault (see [*2]Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823 [2011]).Under these circumstances, that branch of the plaintiff's motion which was for an order ofreference should have been granted.
Additionally, as the plaintiff demonstrated that there were no "John Does" or "Jane Does"occupying the subject premises, that branch of the plaintiff's motion which was for leave toamend the caption to delete the defendants sued herein as "John Does" and "Jane Does" shouldhave been granted (see NeighborhoodHous. Servs. of N.Y. City, Inc. v Meltzer, 67 AD3d 872, 873-874 [2009]).
In light of our determination, we need not reach the plaintiff's remaining contention. Rivera,J.P., Eng, Hall and Sgroi, JJ., concur.