Within the 2008, Uvino grabbed out an additional financing covered of the exact same real property

McCarthy, J.P. Is attractive (1) out of a couple requests of the Best Judge (Bartlett III, J.), entered inside the Schoharie State, and this provided plaintiff’s motion to own, among other things, summation view, and you may (2) off a wisdom from told you legal, inserted inside the Schoharie County, hence supplied plaintiff’s action to own a view out-of property foreclosure and you can sales.

Within the 2001, accused Anthony Uvino (hereinafter Uvino) executed a note and you may home financing secured from the real estate, in support of Countrywide Mortgage brokers, Inc. The modern and consolidated mortgages was tasked some moments more than the years.

For the , plaintiff initiated the minute foreclosures step alleging you to Uvino had been into the standard towards his mortgage since the . Uvino responded, saying various defenses and you can counterclaims, together with take a look at this website one plaintiff lacked standing to take the action hence the mortgage are obtained by the ripoff. Plaintiff gone having, on top of other things, bottom line wisdom. Supreme Judge learned that plaintiff filed evidence of Uvino’s standard and you to definitely plaintiff possessed the newest notice at that time the experience is actually began, but Uvino didn’t raise people triable affairs of-fact. Correctly, the judge provided plaintiff’s activity getting bottom line view. By separate buy, brand new courtroom once more stated that it actually was giving realization wisdom so you’re able to plaintiff, and you will designated a great referee to calculate the amount due. After the referee given a report, plaintiff gone to have a wisdom away from foreclosure and purchases, that court granted. Uvino and his awesome wife, accused Ann Uvino (hereinafter with each other also known as defendants), [FN1] now attention away from each other orders as well as the view. [FN2]

Under the activities, in which the checklist will not imply that defendants actually ever looked for permission in the courtroom to submit surreply documentation, we simply cannot ending that the legal abused its discretion for the overlooking defendant’s surreply records whenever choosing plaintiff’s motion (come across HSBC Bank U . s ., Letter

First, defendants argue that Best Courtroom erred in the decreasing to adopt their surreply paperwork. The fresh record will not consist of one assistance because of their argument you to definitely the brand new parties stipulated you to defendants you will complete such as for example documents, neither that legal acknowledged of such articles. [FN3] Surreply records are not explicitly allowed from the statute one to details action files. That law provides for an alerts of movement and you can support affidavits, reacting affidavits and you can help documents, and one respond or responding affidavits (pick CPLR 2214 [b]). Brand new statute then states you to definitely “[o]nly paperwork served in accordance with the arrangements of this signal are realize to get, or even in resistance so you’re able to, the brand new activity, unless of course the new court for good bring about will if you don’t lead” (CPLR 2214 [c]). Good. v Roumiantseva, 130 AD3d 983, 985 ; contrast Matter-of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 ). In any event, what contained in the surreply papers try insufficient to improve a good triable issue of fact to prevent conclusion wisdom for the plaintiff’s favor (look for SEFCU v Allegra Holdings, LLC, 148 AD3d 1241, 1242 ).

Meanwhile, he consolidated the 2 financing, performing an effective consolidated mention and you may consolidated financial in support of Countrywide Financial FSB

Into the deserves, plaintiff depending the prima-facie entitlement to bottom line judgment within this foreclosure step because of the submitting evidence of the mortgage, delinquent notice and Uvino’s standard (find Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 ; You.S. Bank Letter.A. v Carnivale, 138 AD3d 1220, 1220 ). Responding, defendants so-called that they made all mortgage payments, so they really just weren’t from inside the default. But not, when defendants signed up an authorized to manage their mortgage payments, they however bore a perfect obligation with the intention that those individuals costs have been prompt and you can securely built to plaintiff. Defendants brought proof you to, at the its assistance, currency try subtracted out of Uvino’s month-to-month retirement benefits become paid back into the the borrowed funds. Still, the latest checklist contains no evidence that retirement benefits manager safely processed those individuals written desires and you can sent the new payments so you can plaintiff using a correct membership wide variety, in order for plaintiff in reality acquired the desired mortgage payments and you will knew so you can borrowing all of them facing Uvino’s mortgage (get a hold of SEFCU v Allegra Holdings, LLC, 148 AD3d from the 1242). Thus, defendants don’t raise an effective triable matter of fact out-of standard.