McCarthy, J.P. Appeals (1) away from a couple of requests of one’s Ultimate Judge (Bartlett III, J.), entered into the Schoharie State, hence offered plaintiff’s action to own, on top of other things, realization view, and you will (2) from a view off told you courtroom, entered in Schoharie Condition, and that offered plaintiff’s motion to have a view out of foreclosures and you can marketing.

From inside the 2001, offender Anthony Uvino (hereinafter Uvino) executed a note and you will home financing secure from the real estate, in support of Countrywide Mortgage brokers, Inc. Both the totally new and you may consolidated mortgage loans had been tasked certain minutes over recent years.

For the , plaintiff started the moment property foreclosure action alleging you to definitely Uvino had been into the standard on his financing as the . Uvino answered, saying various defenses and you may counterclaims, together with one plaintiff lacked condition to carry the experience which the loan is actually obtained because of the ripoff. Plaintiff gone having, among other things, bottom line wisdom. Best Legal discovered that plaintiff submitted proof of Uvino’s standard and you to definitely plaintiff possessed the new mention at the time the experience was commenced, but Uvino failed to raise one triable facts of fact. Accordingly, the newest courtroom granted plaintiff’s activity for summary view. By the independent order, the fresh court again stated that it was granting bottom line view in order to plaintiff, and you can designated good referee to help you calculate extent owed. Following the referee provided a study, plaintiff gone to have a judgment away from foreclosures and you may deals, that your legal granted. Uvino with his wife, offender Ann Uvino (hereinafter along referred to as defendants), [FN1] today focus off each other requests and view. [FN2]

In affairs, where listing will not mean that defendants ever needed consent from the judge add surreply records, we simply cannot ending that legal abused its discernment into the overlooking defendant’s surreply documents when deciding plaintiff’s actions (come across HSBC Bank United states of america, N

Very first, defendants argue that Supreme Courtroom erred during the declining to adopt its surreply documentation. New number doesn’t include any support due to their conflict one to the fresh new functions specified you to defendants you may fill in such as for instance documents, neither that the court acknowledged of these submissions. [FN3] Surreply paperwork aren’t explicitly let because of the statute you to definitely addresses motion documentation. You to law provides for a notice of movement and you may support affidavits, responding affidavits and you will help files, and you may people answer otherwise answering affidavits (pick CPLR 2214 [b]). The fresh law further claims you to “[o]nly documentation offered in accordance with the provisions with the signal shall be realize in support of, or perhaps in opposition so you’re able to, brand new motion, unless the newest court once and for all result in should otherwise lead” (CPLR 2214 [c]). An excellent. v Roumiantseva, 130 AD3d 983, 985 ; contrast Matter-of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 ). In any event, all the information contained in the surreply files was not enough to improve a good triable problem of reality to preclude summation wisdom for the plaintiff’s favor (find SEFCU v Allegra Holdings, LLC, 148 AD3d 1241, 1242 ).

Meanwhile, he consolidated both loans, doing a beneficial consolidated notice and you will consolidated home loan in support of Countrywide Financial FSB

With the merits, plaintiff based its prima facie entitlement so you can bottom line judgment inside foreclosures action because of the distribution proof the loan, delinquent mention and you can Uvino’s default (pick Nationstar Mtge., LLC v Alling, 141 AD3d 916, 917 ; U.S. Lender Letter.A great. v Carnivale, 138 AD3d 1220, 1220 ). In response, defendants alleged which they made every mortgage repayments, so that they just weren’t from inside the default. Yet not, whenever defendants licensed a third party to manage the mortgage payments, they however bore the best responsibility in order that people costs was in fact quick and you can properly made to plaintiff. Defendants lead evidence you to definitely, within its advice, money try deducted away from Uvino’s monthly retirement benefits is paid into the the loan. Nevertheless, new checklist contains no proof that the retirement benefits officer safely processed those written requests and forwarded this new money to help you plaintiff having fun with a proper account number, in order for plaintiff in reality acquired the mandatory home loan repayments and realized to help you credit them facing Uvino’s mortgage loan (get a hold of SEFCU v Allegra Holdings, LLC, 148 AD3d from the 1242). Ergo, defendants don’t increase an quick loans County Line AL effective triable question of facts out-of standard.