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FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
____________________________________________ INDEX NO.
U.S. BANK NATIONAL ASSOCIATION, AS 13839/2008
TRUSTEE FOR LEHMAN BROTHERS-
STRUCTURED ASSET SECURITIES CORPORATION
SASCO 2007-BNC1,
Plaintiff, AFFIRMATION IN REPLY
-against-
SECEAL SERGEANT, BROOKLYN UNION
GAS/KEYSPAN ENERGY DELIVERY, NEW YORK
CITY ENVIRONMENTAL CONTROL BOARD, NEW
YORK CITY TRANSIT ADJUDICATION BUREAU,
PALISADES COLLECTION LLC, PEOPLE OF THE
STATE OF NEW YORK, RANDOLPH JAMES,
MORLISA SERGEANT,
Defendant(s).
____________________________________________
David Gantz, Esq., an attorney duly admitted to practice law before the Courts of the State of New
York, affirms under the penalty of perjury:
1. I am an associate with the law firm of Robertson, Anschutz, Schneid, Crane &
Partners, PLLC ("RAS”), attorneys for the Plaintiff, U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR LEHMAN BROTHERS-STRUCTURED ASSET SECURITIES
CORPORATION SASCO 2007-BNC1 (“Plaintiff”) in this action and as such, I am fully familiar
with the facts and circumstances of this matter, the basis of my knowledge being the file
maintained by the office with respect to this matter.
2. The above-entitled action is for the foreclosure of a mortgage, held by Plaintiff, on
the premises known as 4025 HUBBARD PL BROOKLYN NY 11210 (“Subject Premises”).
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3. I make this Affirmation in Reply Defendant SECEAL SERGEANT (“Defendant”)
Opposition to Plaintiff’s Motion to Vacate asserting that the Court’s dismissal pursuant to CPLR
3215(c) was proper (“Opposition”) and in further support of Plaintiff’s Motion to vacate the
dismissal (“Plaintiff’s Motion)
4. This Court should grant Plaintiff’s Motion in its entirety.
PROCEDURAL HISTORY
5. Plaintiff commenced this action on or about May 2008 through the filing of the
summons and complaint, Notice of Pendency and Certificate of Merit. See NYSCEF Doc No. 9.
6. Defendant was served with the summons and complaint on or about May 10,
2008The Affidavit of Service was filed on or about February 15, 2017. See NYSCEF Doc No. 10
7. Despite said service, Defendant failed to Answer the Complaint and remains in
default.
8. Plaintiff moved for an Order of Reference on or about October 24, 2008. A copy of
the Motion cover age is annexed hereto as Exhibit A.
9. Defendant appeared at a Settlement conference on or about March 10, 2009. See
Exhibit B.
10. The Court granted an Order of Reference by decisions dated October 30, 2009. .
See NYSCEF Doc No. 14
11. By Order dated July 23, 2013, the Court, sua sponte dismissed the action in
accordance with 3215(c) for failure of the Plaintiff to entry of Judgment within one year. See
NYSCEF Doc No. 16
12. Plaintiff has moved to vacate the 3215(c) sua sponte dismissal as the Court lacked
the necessary to deem the action as abandoned pursuant to CPLR 3215(c) especially in light of
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the Plaintiff having been previously granted an Order of Reference and Defendant having appeared
at settlement conferences.
13. Defendant has filed opposition alleging fraud, despite failing to file an Answer with
said allegations, and that the 3215 (c) dismissal was proper..
14. Plaintiff now files the instant reply.
LEGAL ARGUMENT
SUMMARY OF ARGUMENT
15. Defendant’s allegations of Fraud by the Plaintiff are improperly asserted in
opposition to the motion as the Defendant is in default
16. Contrary to Defendant’s claims, Dismissal pursuant to 3215(c) was improper as
Plaintiff did not abandon the action. Within one year of the commencement Plaintiff took steps to
file an Order of Reference.
I. DEFENDANT IS IN DEFAULT
17. As a preliminary matter, Defendant is in default in answering Plaintiff’s Summons
and Complaint.
18. Despite this fact, Defendant attempts to oppose Plaintiff’s motion without even
seeking to vacate their default.
19. Accordingly, the Defendant is not entitled to relief from the default. See, Leone v
Johnson, 99 AD2d 567 (3d Dept 1984); County Asphalt, Inc. v N. Rockland Underground Corp.,
96 AD2d 570 (2d Dept 1983); Berlin v New Hope Holiness Church of God, Inc., 93 AD2d 798 (2d
Dept 1983), appeal dismissed by 60 NY2d 702 (1983); Migliaccio v Phoenix Ins. Co., a Div. of the
Travelers Ins. Co., 91 AD2d 821 (4th Dept 1982); Du-Art Film Labs., Inc. v Wharton Intern. Films
Inc., 91 AD2d 572 (1st Dept 1982)
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20. In light of Defendant’s failure to vacate his default by demonstrating a reasonable
excuse or meritorious defense Defendant lacks the requisite standing to oppose Plaintiff’s motion.
Deutsche Bank Natl. Tr. Co. v Hall, 185 AD3d 1006, 1011 [2d Dept 2020] (“Accordingly, where
the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she “failed
to appear” within the meaning of CPLR 3215(a), that defendant is generally precluded from raising
any non jurisdictional defense without first rebutting the prima facie showing of default.”)
21. Therefore, as Defendant willingly remain in default in answering Plaintiff’s
Complaint, Defendants’ Opposition need not be considered and his allegation of fraud are to be
disregarded1.
II. DISMISSAL PURSUANT TO 3215(C) IS IMPROPER
PLAINTIFF TIMELY MOVED FOR DEFAULT
22. As a general rule CPLR §3215(c) requires a Plaintiff to take steps toward the entry
of default judgment within one (1) year of the defendants’ default in answering the Complaint.
23. Here, Plaintiff moved for an Order of Reference with one year of the filing of the
summons and complaint and was s granted an Order of reference less than sixteen months after
Defendant defaulted in filing an Answer to Plaintiff’s Complaint. See Exhibit A and NYSCEF Doc
No. 14
24. CPLR §3215(c) states, in pertinent part that “if the plaintiff fails to take proceedings
for the entry of judgment within one year after the default, the court shall not enter judgment but
shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion,
unless sufficient cause is shown why the complaint should not be dismissed.” See CPLR 3215(c).
1
Of Note, a review of the indictment included with Defendant’s Opposition (Exhibit I) fails to
reference the Subject Premises and thus does not reflect or support any allegation of fraud.
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25. To avoid dismissal pursuant to the statute, “it is not necessary for a plaintiff to
actually obtain a default judgment within one year of the default in order.” US Bank N.A. v.
Dorestant, 131 A.D.3d 467, 469 (2d Dept. 2015). Rather, “as long as ‘proceedings’ are being taken,
and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case
should not be subject to dismissal,” Brown v Rosedale Nurseries, 259 A.D.2d 256 (1st Dept. 1999),
even if the plaintiff’s motion is later withdrawn. HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d
838, 839 (2d Dept. 2015).
26. In US Bank Nat. Ass’n v. Dorestant, the plaintiff took the preliminary step toward
obtaining a default judgment of foreclosure and sale by moving for an order of reference, therefore
initiating proceedings for entry of the default judgment of foreclosure and sale within one year of
the defendants’ default and, thus, did not abandon the action. See US Bank Nat. Ass’n v. Dorestant,
131 A.D.3d 467 (2d Dept. 2015); See also Citibank, N.A. v Kerszko, 203 AD3d 42 (2d Dept 2022).
27. This Court has even confirmed that in the context of a mortgage foreclosure action,
the filing of an RJI and proceeding with a foreclosure settlement conference is sufficient to
manifest an intent not to abandon the case. Citimortgage v. Zaibak, 188 AD3d 982 (2d Dep’t
2020).
28. Therefore, inflight of the Court holding settlement conferences and Plaintiff having
filed and been granted an Order of Reference Plaintiff demonstrated an intent not to abandon the
case. Accordingly, the Court’s sua sponte dismissal under CPLR §3215(c) was improper.
CPLR 3215(C) IS INAPPLICABLE TO THE DEFENDANT – DEFENSE WAIVED.
29. Plaintiff respectfully submits that the Defendant waived their right to seeks
dismissal of Plaintiff's action pursuant to CPLR 3215(c) by formally appearing in this action and
appearing in settlement conferences. See HSBC Bank USA, N.A. v Slone, 174 AD3d 866, 866
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(2d Dept 2019) (“A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c)
by serving an answer or taking ‘any other steps which may be viewed as a formal or informal
appearance’(citations omitted)”) Carlin v. Carlin, 52 AD3d 559 (2d Dept 2008)(participation in a
conference constitutes an appearance);
30. In the matter of US Bank N.A. v Gustavia Home, LLC, 156 AD3d 843 [2d Dept
2017] the Appellate Division - Second Department held:
A defendant may waive its right to obtain a dismissal of an action as
abandoned under CPLR 3215(c) by his or her conduct, such as “serving an
answer or taking ‘any other steps which may be viewed as a formal or
informal appearance’ ” (HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669,
671, 44 N.Y.S.3d 56, quoting Myers v. Slutsky, 139 A.D.2d 709, 711, 527
N.Y.S.2d 464; see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 772, 27
N.Y.S.3d 468, 47 N.E.3d 747; HSBC Bank USA v. Lugo, 127 A.D.3d 502,
503, 9 N.Y.S.3d 6). Here, National City Bank, Gustavia's predecessor in
interest, waived its right to seek a dismissal pursuant to CPLR 3215(c) by
serving a notice of appearance and waiver, which constituted a formal
appearance in the action, and by its stipulation dated October 23, 2015
(see CPLR 320[a]; Bank of Am., N.A. v. Rice, 155 A.D.3d 593, 63
N.Y.S.3d 486 [2d Dept. 2017]; Myers v. Slutsky, 139 A.D.2d at 710, 527
N.Y.S.2d 464; cf. HSBC Bank USA, N.A. v. Grella, 145 A.D.3d at 670, 44
N.Y.S.3d 56).
31. As defendant has informally appeared in the action by appearing at the settlement
conferences (See Exhibit B), sua sponte dismissal of the action pursuant to CPLR 3215(c) by the
Court was improper.
PLAINTIFF HAS A MERITORIOUS ACTION
32. It is well established that “[a] plaintiff in a mortgage foreclosure action establishes
its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid
note, and evidence of the defendant’s default” (LNV Corp. v. Francois, 134 AD3d 1071, 1071-
1072; see U.S. Bank N.A. v. Akande, 136 AD3d 887, 887; Deutsche Bank Natl. Trust Co. v.
Abdan, 131 AD3d 1001, 1002).” U.S. Bank Nat. Ass'n v Cox, 148 AD3d 962, 962 [2d Dept 2017]
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33. In the instant action, Plaintiff has submitted copies of the Mortgage, unpaid Note,
and evidence of Defendant’s default in Plaintiff’s prior application for an order of reference and a
judgment of foreclosure and sale in the form of an Affidavit of Merit and Amount Due.
WHEREFORE, your affirmant prays for an Order of this Court: granting Plaintiff’s Motion in
Its entirety; and for such other and further relief as the Court may deem just and proper.
Dated: August 15, 2022, 2022
Westbury, NY
Robertson, Anschutz, Schneid, Crane &
Partners, PLLC
______________________________
By: David Gantz, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
Phone: 516.280.7675
Facsimile: 516.280.7674
Word Count Certification
The total number of words in the foregoing brief, memorandum, affirmation or affidavit
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is 1687.
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.
Date: August 15, 2022
Westbury, New York
Robertson, Anschutz, Schneid, Crane &
Partners, PLLC
______________________________
By: David Gantz, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
Phone: 516.280.7675
Facsimile: 516.280.7674
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FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ____________________________________________ INDEX NO. U.S. BANK NATIONAL ASSOCIATION, AS 13839/2008 TRUSTEE FOR LEHMAN BROTHERS- STRUCTURED ASSET SECURITIES CORPORATION SASCO 2007-BNC1, Plaintiff, AFFIRMATION IN REPLY -against- SECEAL SERGEANT, BROOKLYN UNION GAS/KEYSPAN ENERGY DELIVERY, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, PALISADES COLLECTION LLC, PEOPLE OF THE STATE OF NEW YORK, RANDOLPH JAMES, MORLISA SERGEANT, Defendant(s). ____________________________________________ David Gantz, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, affirms under the penalty of perjury: 1. I am an associate with the law firm of Robertson, Anschutz, Schneid, Crane & Partners, PLLC ("RAS”), attorneys for the Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR LEHMAN BROTHERS-STRUCTURED ASSET SECURITIES CORPORATION SASCO 2007-BNC1 (“Plaintiff”) in this action and as such, I am fully familiar with the facts and circumstances of this matter, the basis of my knowledge being the file maintained by the office with respect to this matter. 2. The above-entitled action is for the foreclosure of a mortgage, held by Plaintiff, on the premises known as 4025 HUBBARD PL BROOKLYN NY 11210 (“Subject Premises”). 1 of 7 FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 3. I make this Affirmation in Reply Defendant SECEAL SERGEANT (“Defendant”) Opposition to Plaintiff’s Motion to Vacate asserting that the Court’s dismissal pursuant to CPLR 3215(c) was proper (“Opposition”) and in further support of Plaintiff’s Motion to vacate the dismissal (“Plaintiff’s Motion) 4. This Court should grant Plaintiff’s Motion in its entirety. PROCEDURAL HISTORY 5. Plaintiff commenced this action on or about May 2008 through the filing of the summons and complaint, Notice of Pendency and Certificate of Merit. See NYSCEF Doc No. 9. 6. Defendant was served with the summons and complaint on or about May 10, 2008The Affidavit of Service was filed on or about February 15, 2017. See NYSCEF Doc No. 10 7. Despite said service, Defendant failed to Answer the Complaint and remains in default. 8. Plaintiff moved for an Order of Reference on or about October 24, 2008. A copy of the Motion cover age is annexed hereto as Exhibit A. 9. Defendant appeared at a Settlement conference on or about March 10, 2009. See Exhibit B. 10. The Court granted an Order of Reference by decisions dated October 30, 2009. . See NYSCEF Doc No. 14 11. By Order dated July 23, 2013, the Court, sua sponte dismissed the action in accordance with 3215(c) for failure of the Plaintiff to entry of Judgment within one year. See NYSCEF Doc No. 16 12. Plaintiff has moved to vacate the 3215(c) sua sponte dismissal as the Court lacked the necessary to deem the action as abandoned pursuant to CPLR 3215(c) especially in light of 2 of 7 FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 the Plaintiff having been previously granted an Order of Reference and Defendant having appeared at settlement conferences. 13. Defendant has filed opposition alleging fraud, despite failing to file an Answer with said allegations, and that the 3215 (c) dismissal was proper.. 14. Plaintiff now files the instant reply. LEGAL ARGUMENT SUMMARY OF ARGUMENT 15. Defendant’s allegations of Fraud by the Plaintiff are improperly asserted in opposition to the motion as the Defendant is in default 16. Contrary to Defendant’s claims, Dismissal pursuant to 3215(c) was improper as Plaintiff did not abandon the action. Within one year of the commencement Plaintiff took steps to file an Order of Reference. I. DEFENDANT IS IN DEFAULT 17. As a preliminary matter, Defendant is in default in answering Plaintiff’s Summons and Complaint. 18. Despite this fact, Defendant attempts to oppose Plaintiff’s motion without even seeking to vacate their default. 19. Accordingly, the Defendant is not entitled to relief from the default. See, Leone v Johnson, 99 AD2d 567 (3d Dept 1984); County Asphalt, Inc. v N. Rockland Underground Corp., 96 AD2d 570 (2d Dept 1983); Berlin v New Hope Holiness Church of God, Inc., 93 AD2d 798 (2d Dept 1983), appeal dismissed by 60 NY2d 702 (1983); Migliaccio v Phoenix Ins. Co., a Div. of the Travelers Ins. Co., 91 AD2d 821 (4th Dept 1982); Du-Art Film Labs., Inc. v Wharton Intern. Films Inc., 91 AD2d 572 (1st Dept 1982) 3 of 7 FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 20. In light of Defendant’s failure to vacate his default by demonstrating a reasonable excuse or meritorious defense Defendant lacks the requisite standing to oppose Plaintiff’s motion. Deutsche Bank Natl. Tr. Co. v Hall, 185 AD3d 1006, 1011 [2d Dept 2020] (“Accordingly, where the plaintiff has demonstrated, prima facie, that a defendant is in default because he or she “failed to appear” within the meaning of CPLR 3215(a), that defendant is generally precluded from raising any non jurisdictional defense without first rebutting the prima facie showing of default.”) 21. Therefore, as Defendant willingly remain in default in answering Plaintiff’s Complaint, Defendants’ Opposition need not be considered and his allegation of fraud are to be disregarded1. II. DISMISSAL PURSUANT TO 3215(C) IS IMPROPER PLAINTIFF TIMELY MOVED FOR DEFAULT 22. As a general rule CPLR §3215(c) requires a Plaintiff to take steps toward the entry of default judgment within one (1) year of the defendants’ default in answering the Complaint. 23. Here, Plaintiff moved for an Order of Reference with one year of the filing of the summons and complaint and was s granted an Order of reference less than sixteen months after Defendant defaulted in filing an Answer to Plaintiff’s Complaint. See Exhibit A and NYSCEF Doc No. 14 24. CPLR §3215(c) states, in pertinent part that “if the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” See CPLR 3215(c). 1 Of Note, a review of the indictment included with Defendant’s Opposition (Exhibit I) fails to reference the Subject Premises and thus does not reflect or support any allegation of fraud. 4 of 7 FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 25. To avoid dismissal pursuant to the statute, “it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order.” US Bank N.A. v. Dorestant, 131 A.D.3d 467, 469 (2d Dept. 2015). Rather, “as long as ‘proceedings’ are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal,” Brown v Rosedale Nurseries, 259 A.D.2d 256 (1st Dept. 1999), even if the plaintiff’s motion is later withdrawn. HSBC Bank USA, N.A. v. Alexander, 124 A.D.3d 838, 839 (2d Dept. 2015). 26. In US Bank Nat. Ass’n v. Dorestant, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference, therefore initiating proceedings for entry of the default judgment of foreclosure and sale within one year of the defendants’ default and, thus, did not abandon the action. See US Bank Nat. Ass’n v. Dorestant, 131 A.D.3d 467 (2d Dept. 2015); See also Citibank, N.A. v Kerszko, 203 AD3d 42 (2d Dept 2022). 27. This Court has even confirmed that in the context of a mortgage foreclosure action, the filing of an RJI and proceeding with a foreclosure settlement conference is sufficient to manifest an intent not to abandon the case. Citimortgage v. Zaibak, 188 AD3d 982 (2d Dep’t 2020). 28. Therefore, inflight of the Court holding settlement conferences and Plaintiff having filed and been granted an Order of Reference Plaintiff demonstrated an intent not to abandon the case. Accordingly, the Court’s sua sponte dismissal under CPLR §3215(c) was improper. CPLR 3215(C) IS INAPPLICABLE TO THE DEFENDANT – DEFENSE WAIVED. 29. Plaintiff respectfully submits that the Defendant waived their right to seeks dismissal of Plaintiff's action pursuant to CPLR 3215(c) by formally appearing in this action and appearing in settlement conferences. See HSBC Bank USA, N.A. v Slone, 174 AD3d 866, 866 5 of 7 FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 (2d Dept 2019) (“A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking ‘any other steps which may be viewed as a formal or informal appearance’(citations omitted)”) Carlin v. Carlin, 52 AD3d 559 (2d Dept 2008)(participation in a conference constitutes an appearance); 30. In the matter of US Bank N.A. v Gustavia Home, LLC, 156 AD3d 843 [2d Dept 2017] the Appellate Division - Second Department held: A defendant may waive its right to obtain a dismissal of an action as abandoned under CPLR 3215(c) by his or her conduct, such as “serving an answer or taking ‘any other steps which may be viewed as a formal or informal appearance’ ” (HSBC Bank USA, N.A. v. Grella, 145 A.D.3d 669, 671, 44 N.Y.S.3d 56, quoting Myers v. Slutsky, 139 A.D.2d 709, 711, 527 N.Y.S.2d 464; see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 772, 27 N.Y.S.3d 468, 47 N.E.3d 747; HSBC Bank USA v. Lugo, 127 A.D.3d 502, 503, 9 N.Y.S.3d 6). Here, National City Bank, Gustavia's predecessor in interest, waived its right to seek a dismissal pursuant to CPLR 3215(c) by serving a notice of appearance and waiver, which constituted a formal appearance in the action, and by its stipulation dated October 23, 2015 (see CPLR 320[a]; Bank of Am., N.A. v. Rice, 155 A.D.3d 593, 63 N.Y.S.3d 486 [2d Dept. 2017]; Myers v. Slutsky, 139 A.D.2d at 710, 527 N.Y.S.2d 464; cf. HSBC Bank USA, N.A. v. Grella, 145 A.D.3d at 670, 44 N.Y.S.3d 56). 31. As defendant has informally appeared in the action by appearing at the settlement conferences (See Exhibit B), sua sponte dismissal of the action pursuant to CPLR 3215(c) by the Court was improper. PLAINTIFF HAS A MERITORIOUS ACTION 32. It is well established that “[a] plaintiff in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the defendant’s default” (LNV Corp. v. Francois, 134 AD3d 1071, 1071- 1072; see U.S. Bank N.A. v. Akande, 136 AD3d 887, 887; Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1002).” U.S. Bank Nat. Ass'n v Cox, 148 AD3d 962, 962 [2d Dept 2017] 6 of 7 FILED: KINGS COUNTY CLERK 08/15/2022 05:07 PM INDEX NO. 13839/2008 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/15/2022 33. In the instant action, Plaintiff has submitted copies of the Mortgage, unpaid Note, and evidence of Defendant’s default in Plaintiff’s prior application for an order of reference and a judgment of foreclosure and sale in the form of an Affidavit of Merit and Amount Due. WHEREFORE, your affirmant prays for an Order of this Court: granting Plaintiff’s Motion in Its entirety; and for such other and further relief as the Court may deem just and proper. Dated: August 15, 2022, 2022 Westbury, NY Robertson, Anschutz, Schneid, Crane & Partners, PLLC ______________________________ By: David Gantz, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, New York 11590 Phone: 516.280.7675 Facsimile: 516.280.7674 Word Count Certification The total number of words in the foregoing brief, memorandum, affirmation or affidavit inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 1687. The document complies with the applicable word count limit and is based on the word count of the word-processing system used to prepare the document. Date: August 15, 2022 Westbury, New York Robertson, Anschutz, Schneid, Crane & Partners, PLLC ______________________________ By: David Gantz, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, New York 11590 Phone: 516.280.7675 Facsimile: 516.280.7674 7 of 7