| NationStar Mtge., LLC v Silveri |
| 2015 NY Slip Op 02102 [126 AD3d 864] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| NationStar Mortgage, LLC, Formerly Known as CentexHome Equity Company, LLC, Appellant, v Francesco Silveri, Respondent, et al.,Defendant. |
Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Nassau County (Adams, J.), entered October 31, 2013, which denied itsmotion for summary judgment on the complaint insofar as asserted against the defendantFrancesco Silveri and dismissing his affirmative defenses, and to amend the caption toremove the defendants sued herein as "John Doe" and "Mary Doe."
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion for summary judgment on the complaint insofar as asserted againstthe defendant Francesco Silveri and dismissing his affirmative defenses, and to amendthe caption to remove the defendants sued herein as "John Doe" and "Mary Doe" isgranted.
The Supreme Court erred in denying those branches of the plaintiff's motion whichwere for summary judgment on the complaint insofar as asserted against the defendantFrancesco Silveri and dismissing his affirmative defenses on the ground that the plaintifffailed to prove its compliance with RPAPL 1304 (see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d909, 911 [2013]). The instant action to foreclose on a mortgage involving a "homeloan" was commenced July 28, 2008, which was prior to the effective date of RPAPL1304. Therefore, RPAPL 1304 is not applicable to this action (cf. Deutsche BankNatl. Trust Co. v Spanos, 102 AD3d at 911). Moreover, the plaintiff established,prima facie, its entitlement to judgment as a matter of law on the complaint insofar asasserted against Silveri and dismissing his affirmative defenses by producing themortgage, unpaid note, and evidence of default (see Sperry Assoc. Fed. Credit Union v Alexander, 116 AD3d759 [2014]; WachoviaBank, N.A. v Carcano, 106 AD3d 724, 725 [2013]). Since no opposition wasfiled, no triable issue of fact was raised in response to the plaintiff's prima facie showingor as to the merits of any of Silveri's affirmative defenses (see Flagstar Bank v Bellafiore,94 AD3d 1044, 1045 [2012]).
As the plaintiff demonstrated that there was no "John Doe" or "Mary Doe" occupyingthe subject premises, that branch of the plaintiff's motion which was to amend thecaption to delete the defendants sued herein as "John Doe" and "Mary Doe" should havebeen granted (see Flagstar Bank v Bellafiore, 94 AD3d at 1046). Dillon, J.P.,Dickerson, Chambers and Roman, JJ., concur.