Preview
FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021
Exhibit N
FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
CITIMORTGAGE, INC., INDEX # 4841/2015
Plaintiff, ATTORNEY
-against-
AFFIRMATION
RICHARD RAMLAL, JANICE MCRAE, LOIS RAMLAL,
NEIGHBORHOOD HOUSING SERVICES OF NEW YORK
CITY, COMMISSIONER OF SOCIAL SERVICES OF THE
CITY OF NEW YORK SOCIAL SERVICES DISTRICT,
NEW YORK CITY PARKING VIOLATIONS BUREAU,
NEW YORK CITY ENVIRONMENTAL CONTROL
BOARD, NEW YORK CITY TRANSIT ADJUDICATION
Doe"
BUREAU and "John Doe"and/or"Jane # 1-10 inclusive,
the last ten names being fictitious and unknown to plaintiff, the
persons or parties intended being the tenants, occupants,
persons or corporations, if any, having or claiming an interest
in or lien upon the premisesdescribedinthe complaint,
Defendants.
ERIC M. ZISK, ESQ., an attorney duly admitted to practice before the Courts of the State
of New York, hereby affirms the following under penalties of perjury and pursuant to CPLR §
2106 states:
1. I am an associate at the law firm of DAVID A. GALLO & ASSOCIATES LLP,
("CitiMortgage"
attorneys for the CitiMortgage, Inc. or "PlaintiH"), named plaintiff herein. I submit
this Affirmation in support of CitiMortgage's Motion for an Order a) striking the Answer,
Affirmative Defenses and Counterclaims of Defendants, RICHARD RAMLAL and LOIS
RAMLAL (hereinafter referred to as the "Defendants"); b) granting summary judgment on its
foreclosure complaint against said default judgment against the non-
Defendants; c) granting
Borrowers'
appearing defendant(s); d) appointing a referee herein to ascertain and compute the
mortgage indebtedness; e) amending the caption accordingly; and such other and further relief as
may be just and proper.
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2. CitiMortgage, Inc. commenced this action to foreclose its mortgage (the
"Mortgage"), encumbering the premises known as 941 EAST 34TH STREET, BROOKLYN,
County of Kings, City and State of New York 11210 (the "Premises").
STATEMENT OF FACTS
3. The Affidavit of an Authorized Representative of CitiMortgage ("the Bank
Affidavit"), is submitted herewith in support of the Plaintiffs application for summary judgmcñt.
4. Pursuant to the Bank Affidavit, on or about March 5, 2009, Borrowers, RICHARD
RAMLAL AND JANICE MCRAE, executed and delivered to CITIZENS COMMUNITY BANK
a Note (the "Note"), whereby the Borrowers agreed to pay to CITIZENS COMMUNITY BANK
or its transferees the sum of $461,080.00, plus increases in principal, if any, with interest thereon,
installments of principal and interest to be paid monthly, in substantially equal payments on the
same date of each month until maturity, all as provided in the Note. A true and correct copy of
the Note is annexed hereto as part of Exhibit A, see also, the Bank Affidavit.
5. As collateral security for the payment of the Note, Borrowers, RICHARD
RAMLAL AND JANICE MCRAE executed, acknowledged, and delivered to MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), AS NOMINEE FOR CITIZENS
COMMUNITY BANK a mortgage dated March 5, 2009, in the principal amount of $461,080.00
(the "Mortgage"), which was recorded in the Office ofthe City Register of Kings County on March
19, 2009 in CRFN 2009000080035, and the mortgage recording tax was duly paid. The Mortgage
was assigned to CitiMortgage, Inc. by assignment of mortgage dated February 17, 2011, which
was recorded in the Office of the City Register of Kings County on March 10, 2011 in CRFN
2011000087781. True and correct copies of Note, Mortgage and Assign=cñt of Mortgage
annexed hereto as Exhibit A, see also, the Bank Affidavit.
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6. The Borrowers defaulted under the Note and Mortgage by failing to make their
monthly payments of principal and interest commencing June 1, 2010 through date. See the Bank
Affidavit.
7. As a result of the foregoing and in accordance with its rights under the Note and
Mortgage, plaintiff has elected to exercise its option to demand immediate payment in full of the
amount outstanding under the Note and Mortgage and has notified the Borrowers of its decision
to demand immediate payment in full.
8. By correspondence dated January 13, 2015, Plaintiff issued a thirty (30) day
demand for payment of the Mortgage arrears, plus accrued late charges. The Borrowers failed to
dispute the arrears demanded within thirty (30) days of its issuance. A true and correct copy of
the Demand Letter is annexed hereto as Exhibit B, see also the Bank Affidavit.
9. In compliance with RPAPL § 1304, 90 Day Pre-Foreclosure notices were sent to
the Borrowers, RICHARD RAMLAL and JANICE MCRAE, on May 6, 2014 by certified and first
class mail as evidenced by Plaintiff's Correspondence Log, admissible as a business record pursuant
to CPLR § 4518. True and correct copies of the 90 Day Notices and Correspondence Log are
annexed hereto as Exhibit B, see also the Bank Affidavit. Answering Defendant LOIS
RAMLAL was not a Borrower was therefore was not entitled to 90 Day Notices pursuant to
RPAPL § 1304.
10. Pursuant to RPAPL § 1306, the plaintiff, assignee or mortgage loan servicer
has timely filed with the Superintendent ofthe New York State Banking Department the name,
address, last known telephone number of the Borrowers and the amount claimed as due and
owing on the mortgage. Copies of the Proof of Filing Statements are annexed hereto as
Exhibit B, see also the Bank Affidavit.
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11. There is now due and owing to the Plaintiff, on account of the Note and Mortgage,
the principal sum of $455,090.82 withinterestthereon at the rate of 6.250% per annum from April
1, 2010, plus late charges and costs and expenses in enforcing the Mortgages, no part of which
sum has been paid and no credit which sum is due any defendant in this action. See the Bank
Affidavit.
PROCEDURAL POSTURE
12. The Plaintiff commenced this foreclosure action by filing a Summons and
Complaint and Notice of Pendency in the Office of the Clerk of Kings County on April 16, 2015.
See, copies of the Summers and Cemphint and Notice of Pcedeñcy annexed hereto as
Exhibit C.
13. The Defendant(s) were duly served with the Summons and Complaint in this action.
All of the defeñdañts were served. See, Affidavits of Service annexed hereto as Exhibit D.
14. The Defendant(s) were duly served with a copy of the summons which contained a
notice in boldface that fully complies with RPAPL § 1320. See, copy of Summons annexed
hereto as Exhibit C and copies of all Affidavits of Service annexed as Exhibit D.
15. Pursuant to RPAPL § 1303, a Notice in bold, 14 point type, on colored paper
different than the color of the summons and complaint, with the title "Help for Homeowners in
Foreclosure"
in 20 point type, was provided to Alstate Process Service, Inc., for service on the
mortgagors. See, a copy of the Notice together with the Affidavit of Service annexed hereto
as Exhibit F.
16. Pursuant to CPLR § 3215(g)(3)(I), a copy of the summons & complaint was mailed
to the non-appearing Borrower, JANICE MCRAE. See Exhibit D.
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17. Pursuant to CPLR § 3215(g)(1), all non-appearing defendants are being served with
this application.
18. The plaintiff submits herewith a Non-Military Affidavit and Department of Defense
Manpower Database search regarding Borrowers, RICHARD RAMLAL and JANICE MCRAE,
and Defendant, LOIS RAMLAL. Upon information and belief said Defendants are not currently
active in the military. See, copy of said Affidavit and Military Status Affirmation annexed as
Exhibit I.
19. With respect to Defendant, JANE SMITH (name refused), she is not a borrower
with regard to this mortgage loan. Accordingly, Affiant does not possess said Defendant's Social
Security Number or Date of Birth which are necessary to perform a DMDC record
search. Therefore, Affiant does not have sufficient knowledge or information to ascertain whether
or not said Defendant is currently engaged in active duty military service as contemplated by the
Service members Civil Relief Act at 50 U.S.C. App. §521.
20. Plaintiff's counsel has filed the Certificate of Merit pursuant to CPLR § 3012-b. A
filed copy of the Certificate of Merit is annexed as Exhibit J.
21. The Defendants, RICHARD RAMLAL and LOIS RAMLAL, served an Answer to
the Foreclosure Complaint which contained Affirmative Defenses and Counterclaims. See, a copy
Defendants'
of the Answer annexed hereto as Exhibit E. Plaintiff served a Verified Reply to
Counterclaims on May 28, 2015. See filed Reply to Coüñtcrclaims annexed hereto as part of
Exhibit F.
22. None of the other defendants has answered or appeared in this action.
23. It has been determined that there is one adult tenants at the premises. The Plaintiff
respectfully requests that the caption of the action be amended by substituting JANE SMITH and
FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015
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#1-10" #2-10"
by striking the remaining defendants sued herein as "John Doe and "Jane Doe
without prejudice to the proceedings heretofore had herein.
24. The complaint has not been amended since the filing of the Notice of Pendency, so
as to affect other property described in the original complaint, or so as to extend the claims of the
of the plaintiff as against the mortgaged premises or to enlarge the relief prayed for therein.
25. Upon information and belief, none of the defendants in this action, is an infant,
incompetent or absentee.
26. As further demonstrated herein, the Answer, Affirmative Defenses and
Counterclaims asserted by the Defendants, RICHARD RAMLAL and LOIS RAMLAL, should
be stricken, and suramary judgment granted in favor of the plaintiff on its foreclosure complaint.
DEFENDANTS'
STATUS AND ANSWER
27. Plaintiff named the answering Defendants, RICHARD RAMLAL and LOIS
RAMLAL, in the foreclosure complaint because RICHARD RAMLAL was an obligor on the Note
secured by the Mortgage and a record owner of the property and LOIS RAMLAL was a record
Defendants'
owner of the property. Said interest will be foreclosed by the entry of a judgment of
foreclosure.
Defendants'
28. The Answer, Affirmative Defenses and Counterclaims are insufficient
to raise a triable issue of fact as to Plaintiffs right of foreclosure.
PLAINTIFF'S PRIMA FACIE RIGHT OF FORECLOSURE
29. There is clear evidence showing the Borrowers, RICHARD RAMLAL and
JANICE MCRAE, executed a Note on the Premises for good and valuable consideration. The
Borrowers executed the Mortgage as aforestated. The evidence similarly demonstrates that the
Borrowers defaulted in making the monthly payments commencing June 1, 2010 and thereafter.
See, the Bank Affidavit.
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30. Upon production of the Mortgage, the unpaid Note and evidence of default, the
Plaintiff has established a prima facie right to foreclose the Mortgage. See First National Bank of
Highland v. J & J Milano, Inc., 160 A.D.2d 670 (2d Dept. 1990); Alagappan v. Jaffer, 157 A.D.2d
687 (2d Dep't 1990); Gateway State Bank v. Shangri La Private Club for Women, 113 A.D.2d 791
(2d Dep't 1986); affd 67 N.Y.2d 627, 499 N.Y.S.2d 679 (1986).
31. Accordingly, the Plaintiff is entitled to the appointment of a referee to compute the
balance owed on Plaintiffs mortgage. See FGH Rea_lty Credit Corp. v. VRD Realty Corp., 231
A.D.2d 489 (2d Dept. 1996); Friesch-Groningsche Hvootheekbank Realty Credit Corp. v. Brooke
Associates, 211 A.D.2d 696 (2d Dept. 1995).
32. The burden now shifts to the Defendants to establish by competent evidence that a
triable issue of fact exists to warrant denial of summary judgment to Plaintiff. See Alagappan v.
Jaffer, supra; Gateway State Bank v. Shangri La Private Club for Women, supra; Federal Home
Loan Mortgage Corporation v. Karasthathis, 237 A.D.2d 558 (2d Dept. 1997).
33. In order to successfully oppose this Motion for summary judgment, the Defendants
must produce evidentiary proof in admissible form, establishing a triable issue of material fact
exists, not mere conclusions, hope, unsubstantiated allegations or assertions. See, Zuckerman v.
City of New York, 49 N.Y.2d 557 (1980).
GENERAL DENIALS ARE INSUFFICIENT AS
A MATTER OF LAW. REQUIRING DISMISSAL
Defendants'
34. The Answer provides general denials and fails to address the
Defendants'
allegations set forth in CitiMortgage's foreclosure complaiñt. Therefore, the Answer
is insufficient to raise a triable issue of fact as to CitiMortgage's right of foreclosure.
35. General denials are insufficient as a matter of law to raise any issues of fact and the
Defendants'
denials have no merit. See Citibank v. Term Pearl Street Garate Coro., 235 A.D.2d
FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015
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(1"
303 Dept. 1997); J.F.J. Fuel. Inc. v. Ortiz, 234 A.D.2d 424 (2d Dept. 1996). See also Gotham
Air Conditioning Service, Inc. v. Heitner, 144 Misc.2d 430, 544 N.Y.S.2d 703 (Civ. Ct. Queens
Co. 1989); CPLR 3211(b).
DEFENDANTS'
AFFIRMATIVE DEFENSES
SHOULD BE DISMISSED
Defendants'
36. The affirmative defenses are conclusory allegations bereft of any
particular statements of fact and deficient for pleading purposes to give notice of a valid defense.
It is well-established that any affirmative defense is subject to the basic pleading rules required by
CPLR § 3013.
37. CPLR § 3013 provides in relevant part as follows:
§ 3013. Particularity of statements generally
Statements in a pleading shall be sufficiently particular to give the court and parties
notice of the transactions, occurrences, or series of transactions or occurrences,
intended to be proved and the material elements of each cause of action or defense.
38. Conclusory allegations will not support an affirmative defense. See Bruno v.
Sant'elia, 52 A.D.3d 556 (2d Dep't 2008) (dismissing defenses that were "completely
unsubstantiated by any factual allegations and were conclusory in nature").
39. Inasmuch as the Answer contains bare defenses lacking the factual specificity
Defendants'
required by CPLR § 3013, affirmative defenses fail to raise a triable issue of fact as
to CitiMortgage's prima facie right of foreclosure, and all should be stricken.
FIRST AFFIRMATIVE DEFENSE
PERSONAL JURISDICTION
SHOULD BE STRICKEN
40. The Defendants allege as their first affirmative defense that they were improperly
served.
41. Pursuant to the Affidavit of Service of Alan S. Feldman, a licensed New York
State process server, Defendant, RICHARD RAMLAL, was served on April 24, 2015 with the
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Summons and Verified Complaint, Notice of Pendency, Certificate of Merit and RPAPL 1303
Notice on colored paper via subservice on his wife, LOIS RAMLAL, a person of suitable age and
34th
discretion, at 941 East Street, Brooklyn, New York. Within twenty days of the subservice,
the same documents were mailed to the Defendant at his last known address in the manner
prescribed by CPLR 308(2). Further, pursuant to the Affidavit of Service of Alan S. Feldman, the
Defendant, LOIS RAMLAL, was personally served with the above documents on April 24, 2015
34th
at 941 East Street, Brooklyn, New York. The Defendants do not dispute the contents of the
affidavits of service.
42. The process server's affidavits of service constitute prima facie evidence of proper
service. See Sando Realty Corp. v. Aris, 209 A.D.2d 682 (2d Dept. 1994). Conclusory denial(s)
of receipt of service is insufficient to raise an issue of fact. Id at 141. See also Manhattan Savings
Bank v. Kohen, 231 A.D.2d 499 (2d Dept. 1996). The Defendants wholly fail to dispute the
veracity or content of the process server's affidavit of service. See Genway Corp. v. Elgut, 177
A.D.2d 467 (2d Dept. (rninimal discrepañcies in the process server's description do not raise
1991)
a factual issue).
43. Finally, pursuant to CPLR 321 l(e), a party waives the defense of improper service
"if, having raised such an objection in a pleading, the objecting party does not move for judgment
."
on that ground within sixty days after serving the pleading . . . CPLR 3211(e); Putnam County
Sav. Bank v. Mastroantone, 111 A.D.3d 914 (2d Dept. 2013). Here, the Answer was served in
May 2014, over one year ago. Given that Defendants failed to move for judgment within sixty
days of service of the Answer where this objection was initially raised, their defense of improper
service is waived.
FILED: KIN
Preview
FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 Exhibit N FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS CITIMORTGAGE, INC., INDEX # 4841/2015 Plaintiff, ATTORNEY -against- AFFIRMATION RICHARD RAMLAL, JANICE MCRAE, LOIS RAMLAL, NEIGHBORHOOD HOUSING SERVICES OF NEW YORK CITY, COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK SOCIAL SERVICES DISTRICT, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION Doe" BUREAU and "John Doe"and/or"Jane # 1-10 inclusive, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premisesdescribedinthe complaint, Defendants. ERIC M. ZISK, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following under penalties of perjury and pursuant to CPLR § 2106 states: 1. I am an associate at the law firm of DAVID A. GALLO & ASSOCIATES LLP, ("CitiMortgage" attorneys for the CitiMortgage, Inc. or "PlaintiH"), named plaintiff herein. I submit this Affirmation in support of CitiMortgage's Motion for an Order a) striking the Answer, Affirmative Defenses and Counterclaims of Defendants, RICHARD RAMLAL and LOIS RAMLAL (hereinafter referred to as the "Defendants"); b) granting summary judgment on its foreclosure complaint against said default judgment against the non- Defendants; c) granting Borrowers' appearing defendant(s); d) appointing a referee herein to ascertain and compute the mortgage indebtedness; e) amending the caption accordingly; and such other and further relief as may be just and proper. FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • 2. CitiMortgage, Inc. commenced this action to foreclose its mortgage (the "Mortgage"), encumbering the premises known as 941 EAST 34TH STREET, BROOKLYN, County of Kings, City and State of New York 11210 (the "Premises"). STATEMENT OF FACTS 3. The Affidavit of an Authorized Representative of CitiMortgage ("the Bank Affidavit"), is submitted herewith in support of the Plaintiffs application for summary judgmcñt. 4. Pursuant to the Bank Affidavit, on or about March 5, 2009, Borrowers, RICHARD RAMLAL AND JANICE MCRAE, executed and delivered to CITIZENS COMMUNITY BANK a Note (the "Note"), whereby the Borrowers agreed to pay to CITIZENS COMMUNITY BANK or its transferees the sum of $461,080.00, plus increases in principal, if any, with interest thereon, installments of principal and interest to be paid monthly, in substantially equal payments on the same date of each month until maturity, all as provided in the Note. A true and correct copy of the Note is annexed hereto as part of Exhibit A, see also, the Bank Affidavit. 5. As collateral security for the payment of the Note, Borrowers, RICHARD RAMLAL AND JANICE MCRAE executed, acknowledged, and delivered to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), AS NOMINEE FOR CITIZENS COMMUNITY BANK a mortgage dated March 5, 2009, in the principal amount of $461,080.00 (the "Mortgage"), which was recorded in the Office ofthe City Register of Kings County on March 19, 2009 in CRFN 2009000080035, and the mortgage recording tax was duly paid. The Mortgage was assigned to CitiMortgage, Inc. by assignment of mortgage dated February 17, 2011, which was recorded in the Office of the City Register of Kings County on March 10, 2011 in CRFN 2011000087781. True and correct copies of Note, Mortgage and Assign=cñt of Mortgage annexed hereto as Exhibit A, see also, the Bank Affidavit. FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • 6. The Borrowers defaulted under the Note and Mortgage by failing to make their monthly payments of principal and interest commencing June 1, 2010 through date. See the Bank Affidavit. 7. As a result of the foregoing and in accordance with its rights under the Note and Mortgage, plaintiff has elected to exercise its option to demand immediate payment in full of the amount outstanding under the Note and Mortgage and has notified the Borrowers of its decision to demand immediate payment in full. 8. By correspondence dated January 13, 2015, Plaintiff issued a thirty (30) day demand for payment of the Mortgage arrears, plus accrued late charges. The Borrowers failed to dispute the arrears demanded within thirty (30) days of its issuance. A true and correct copy of the Demand Letter is annexed hereto as Exhibit B, see also the Bank Affidavit. 9. In compliance with RPAPL § 1304, 90 Day Pre-Foreclosure notices were sent to the Borrowers, RICHARD RAMLAL and JANICE MCRAE, on May 6, 2014 by certified and first class mail as evidenced by Plaintiff's Correspondence Log, admissible as a business record pursuant to CPLR § 4518. True and correct copies of the 90 Day Notices and Correspondence Log are annexed hereto as Exhibit B, see also the Bank Affidavit. Answering Defendant LOIS RAMLAL was not a Borrower was therefore was not entitled to 90 Day Notices pursuant to RPAPL § 1304. 10. Pursuant to RPAPL § 1306, the plaintiff, assignee or mortgage loan servicer has timely filed with the Superintendent ofthe New York State Banking Department the name, address, last known telephone number of the Borrowers and the amount claimed as due and owing on the mortgage. Copies of the Proof of Filing Statements are annexed hereto as Exhibit B, see also the Bank Affidavit. FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • 11. There is now due and owing to the Plaintiff, on account of the Note and Mortgage, the principal sum of $455,090.82 withinterestthereon at the rate of 6.250% per annum from April 1, 2010, plus late charges and costs and expenses in enforcing the Mortgages, no part of which sum has been paid and no credit which sum is due any defendant in this action. See the Bank Affidavit. PROCEDURAL POSTURE 12. The Plaintiff commenced this foreclosure action by filing a Summons and Complaint and Notice of Pendency in the Office of the Clerk of Kings County on April 16, 2015. See, copies of the Summers and Cemphint and Notice of Pcedeñcy annexed hereto as Exhibit C. 13. The Defendant(s) were duly served with the Summons and Complaint in this action. All of the defeñdañts were served. See, Affidavits of Service annexed hereto as Exhibit D. 14. The Defendant(s) were duly served with a copy of the summons which contained a notice in boldface that fully complies with RPAPL § 1320. See, copy of Summons annexed hereto as Exhibit C and copies of all Affidavits of Service annexed as Exhibit D. 15. Pursuant to RPAPL § 1303, a Notice in bold, 14 point type, on colored paper different than the color of the summons and complaint, with the title "Help for Homeowners in Foreclosure" in 20 point type, was provided to Alstate Process Service, Inc., for service on the mortgagors. See, a copy of the Notice together with the Affidavit of Service annexed hereto as Exhibit F. 16. Pursuant to CPLR § 3215(g)(3)(I), a copy of the summons & complaint was mailed to the non-appearing Borrower, JANICE MCRAE. See Exhibit D. FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • 17. Pursuant to CPLR § 3215(g)(1), all non-appearing defendants are being served with this application. 18. The plaintiff submits herewith a Non-Military Affidavit and Department of Defense Manpower Database search regarding Borrowers, RICHARD RAMLAL and JANICE MCRAE, and Defendant, LOIS RAMLAL. Upon information and belief said Defendants are not currently active in the military. See, copy of said Affidavit and Military Status Affirmation annexed as Exhibit I. 19. With respect to Defendant, JANE SMITH (name refused), she is not a borrower with regard to this mortgage loan. Accordingly, Affiant does not possess said Defendant's Social Security Number or Date of Birth which are necessary to perform a DMDC record search. Therefore, Affiant does not have sufficient knowledge or information to ascertain whether or not said Defendant is currently engaged in active duty military service as contemplated by the Service members Civil Relief Act at 50 U.S.C. App. §521. 20. Plaintiff's counsel has filed the Certificate of Merit pursuant to CPLR § 3012-b. A filed copy of the Certificate of Merit is annexed as Exhibit J. 21. The Defendants, RICHARD RAMLAL and LOIS RAMLAL, served an Answer to the Foreclosure Complaint which contained Affirmative Defenses and Counterclaims. See, a copy Defendants' of the Answer annexed hereto as Exhibit E. Plaintiff served a Verified Reply to Counterclaims on May 28, 2015. See filed Reply to Coüñtcrclaims annexed hereto as part of Exhibit F. 22. None of the other defendants has answered or appeared in this action. 23. It has been determined that there is one adult tenants at the premises. The Plaintiff respectfully requests that the caption of the action be amended by substituting JANE SMITH and FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 #1-10" #2-10" by striking the remaining defendants sued herein as "John Doe and "Jane Doe without prejudice to the proceedings heretofore had herein. 24. The complaint has not been amended since the filing of the Notice of Pendency, so as to affect other property described in the original complaint, or so as to extend the claims of the of the plaintiff as against the mortgaged premises or to enlarge the relief prayed for therein. 25. Upon information and belief, none of the defendants in this action, is an infant, incompetent or absentee. 26. As further demonstrated herein, the Answer, Affirmative Defenses and Counterclaims asserted by the Defendants, RICHARD RAMLAL and LOIS RAMLAL, should be stricken, and suramary judgment granted in favor of the plaintiff on its foreclosure complaint. DEFENDANTS' STATUS AND ANSWER 27. Plaintiff named the answering Defendants, RICHARD RAMLAL and LOIS RAMLAL, in the foreclosure complaint because RICHARD RAMLAL was an obligor on the Note secured by the Mortgage and a record owner of the property and LOIS RAMLAL was a record Defendants' owner of the property. Said interest will be foreclosed by the entry of a judgment of foreclosure. Defendants' 28. The Answer, Affirmative Defenses and Counterclaims are insufficient to raise a triable issue of fact as to Plaintiffs right of foreclosure. PLAINTIFF'S PRIMA FACIE RIGHT OF FORECLOSURE 29. There is clear evidence showing the Borrowers, RICHARD RAMLAL and JANICE MCRAE, executed a Note on the Premises for good and valuable consideration. The Borrowers executed the Mortgage as aforestated. The evidence similarly demonstrates that the Borrowers defaulted in making the monthly payments commencing June 1, 2010 and thereafter. See, the Bank Affidavit. FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • 30. Upon production of the Mortgage, the unpaid Note and evidence of default, the Plaintiff has established a prima facie right to foreclose the Mortgage. See First National Bank of Highland v. J & J Milano, Inc., 160 A.D.2d 670 (2d Dept. 1990); Alagappan v. Jaffer, 157 A.D.2d 687 (2d Dep't 1990); Gateway State Bank v. Shangri La Private Club for Women, 113 A.D.2d 791 (2d Dep't 1986); affd 67 N.Y.2d 627, 499 N.Y.S.2d 679 (1986). 31. Accordingly, the Plaintiff is entitled to the appointment of a referee to compute the balance owed on Plaintiffs mortgage. See FGH Rea_lty Credit Corp. v. VRD Realty Corp., 231 A.D.2d 489 (2d Dept. 1996); Friesch-Groningsche Hvootheekbank Realty Credit Corp. v. Brooke Associates, 211 A.D.2d 696 (2d Dept. 1995). 32. The burden now shifts to the Defendants to establish by competent evidence that a triable issue of fact exists to warrant denial of summary judgment to Plaintiff. See Alagappan v. Jaffer, supra; Gateway State Bank v. Shangri La Private Club for Women, supra; Federal Home Loan Mortgage Corporation v. Karasthathis, 237 A.D.2d 558 (2d Dept. 1997). 33. In order to successfully oppose this Motion for summary judgment, the Defendants must produce evidentiary proof in admissible form, establishing a triable issue of material fact exists, not mere conclusions, hope, unsubstantiated allegations or assertions. See, Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). GENERAL DENIALS ARE INSUFFICIENT AS A MATTER OF LAW. REQUIRING DISMISSAL Defendants' 34. The Answer provides general denials and fails to address the Defendants' allegations set forth in CitiMortgage's foreclosure complaiñt. Therefore, the Answer is insufficient to raise a triable issue of fact as to CitiMortgage's right of foreclosure. 35. General denials are insufficient as a matter of law to raise any issues of fact and the Defendants' denials have no merit. See Citibank v. Term Pearl Street Garate Coro., 235 A.D.2d FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • (1" 303 Dept. 1997); J.F.J. Fuel. Inc. v. Ortiz, 234 A.D.2d 424 (2d Dept. 1996). See also Gotham Air Conditioning Service, Inc. v. Heitner, 144 Misc.2d 430, 544 N.Y.S.2d 703 (Civ. Ct. Queens Co. 1989); CPLR 3211(b). DEFENDANTS' AFFIRMATIVE DEFENSES SHOULD BE DISMISSED Defendants' 36. The affirmative defenses are conclusory allegations bereft of any particular statements of fact and deficient for pleading purposes to give notice of a valid defense. It is well-established that any affirmative defense is subject to the basic pleading rules required by CPLR § 3013. 37. CPLR § 3013 provides in relevant part as follows: § 3013. Particularity of statements generally Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. 38. Conclusory allegations will not support an affirmative defense. See Bruno v. Sant'elia, 52 A.D.3d 556 (2d Dep't 2008) (dismissing defenses that were "completely unsubstantiated by any factual allegations and were conclusory in nature"). 39. Inasmuch as the Answer contains bare defenses lacking the factual specificity Defendants' required by CPLR § 3013, affirmative defenses fail to raise a triable issue of fact as to CitiMortgage's prima facie right of foreclosure, and all should be stricken. FIRST AFFIRMATIVE DEFENSE PERSONAL JURISDICTION SHOULD BE STRICKEN 40. The Defendants allege as their first affirmative defense that they were improperly served. 41. Pursuant to the Affidavit of Service of Alan S. Feldman, a licensed New York State process server, Defendant, RICHARD RAMLAL, was served on April 24, 2015 with the FILED: KINGS COUNTY CLERK 09/10/2021 02:29 PM INDEX NO. 4841/2015 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 09/10/2021 • • Summons and Verified Complaint, Notice of Pendency, Certificate of Merit and RPAPL 1303 Notice on colored paper via subservice on his wife, LOIS RAMLAL, a person of suitable age and 34th discretion, at 941 East Street, Brooklyn, New York. Within twenty days of the subservice, the same documents were mailed to the Defendant at his last known address in the manner prescribed by CPLR 308(2). Further, pursuant to the Affidavit of Service of Alan S. Feldman, the Defendant, LOIS RAMLAL, was personally served with the above documents on April 24, 2015 34th at 941 East Street, Brooklyn, New York. The Defendants do not dispute the contents of the affidavits of service. 42. The process server's affidavits of service constitute prima facie evidence of proper service. See Sando Realty Corp. v. Aris, 209 A.D.2d 682 (2d Dept. 1994). Conclusory denial(s) of receipt of service is insufficient to raise an issue of fact. Id at 141. See also Manhattan Savings Bank v. Kohen, 231 A.D.2d 499 (2d Dept. 1996). The Defendants wholly fail to dispute the veracity or content of the process server's affidavit of service. See Genway Corp. v. Elgut, 177 A.D.2d 467 (2d Dept. (rninimal discrepañcies in the process server's description do not raise 1991) a factual issue). 43. Finally, pursuant to CPLR 321 l(e), a party waives the defense of improper service "if, having raised such an objection in a pleading, the objecting party does not move for judgment ." on that ground within sixty days after serving the pleading . . . CPLR 3211(e); Putnam County Sav. Bank v. Mastroantone, 111 A.D.3d 914 (2d Dept. 2013). Here, the Answer was served in May 2014, over one year ago. Given that Defendants failed to move for judgment within sixty days of service of the Answer where this objection was initially raised, their defense of improper service is waived. FILED: KIN