Wilmington Trust, N.A., as Trustee for the Registered Holders of Credit Suisse First Boston Mortgage Securities Corp., Multifamily Mortgage Pass-Through Certificates, Series 2019-SB67 v. 1738 East 4th Street LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WILMINGTON TRUST, N.A., as trustee for the
registered holders of Credit Suisse First Boston
Mortgage Securities Corp., Multifamily
Mortgage Pass-Through Certificates, Series
2019-Sb67,
Plaintiff,
-against-
1738 EAST 4TH STREET lLC, ELIE SABBAGH,
and THE CITY OF NEW YORK
ENVIRONMENTAL CONTROL BOARD,
Defendants.
MEMORANDUM & ORDER
23-CV-1270 (NGG) (RML)
NICHOLAS G. GARAUFIS, United States District Judge.
Seeking to foreclose on a mortgage (the "Mortgage") encumber-
ing the real property located at 1738 East 4th Street, Brooklyn,
New York 11223 (the "Property''), Plaintiff Wilmington Trust
N.A., as trustee for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Multifamily Mortgage Pass
Through Certificates, Series 2019-SB67 ("Plaintiff'), commenced
the above-captioned action against Defendants 1738 East 4th
Street LLC ("Borrower") and Elie Sabbagh ("Guarantor"), as well
as the City of New York Environmental Control Board ("ECB")
and numerous unnamed "John Doe" defendants pursuant to the
New York Real Property Actions and Proceedings Law ("RPAPL")
§§ 1301 et seq. (Compl. (Dkt. 1) '1'11-5.) Plaintiff alleges that Bor-
rower has been in default on its obligations secured by the
Mortgage since August 2022, and that Plaintiff-as the owner
and holder of the Mortgage-is entitled to a foreclosure judg-
ment against Borrower and Guarantor ("Defendants") as a result.
(Id. '1'1 24-32, 37.)
1
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On October 30, 2023, the court dismissed Plaintiffs claim against
the John Doe defendants. (Mem. & Order Dated 10/30/2023
(''10/30/2023 M&O") (Dkt. 19) at 2.) On April 24, 2024, De-
fendants 	filed 	their 	answer 	(the "Answer"). 	(Defs.' Answer
(Dkt. 37).)
Pending before the court is Plaintiffs fully briefed motion for
summary judgment on its RPAPL claim and to "strike" the An-
swer pursuant to Rule 56 of the Federal Rules of Civil Procedure. 1
(Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") (Dkt. 62-12) at 1; Defs.'
Opp. (Dkt. 63); Pl.'s Reply (Dkt. 64).) For the reasons set forth
below, the court GRANTS IN PART and DENIES IN PART Plain-
tiffs summary judgment motion. 2 Specifically, the court denies
summary judgment to Plaintiff both on its RPAPL claim and on
Defendants' tenth affirmative defense due to Plaintiffs failure to
comply with the mandatory statutory notice requirements in
RPAPL § 1303. 3
1 The ECB does not challenge Plaintiffs right to foreclose. (ECB's Answer
(Dkt. 13).) Through its motion, Plaintiff "simply moves for a judgment
a,gainst [the] ECB simultaneously herewith." (Pl.'s Mot. at 4 n.l.)
2 Plaintiffs request that the court "strike" the Answer is, in fact, a request
for summary judgment on each of Defendants' ten affirmative defenses.
Compare Fed. R. Civ. P. 12(f), with Fed. R. Civ. P. 56(a). In its opening mo-
tion, Plaintiff asserts that these defenses "lack merit," meaning that it is
"appropriate" to "strike the Answer" and "grant summary judgment'' in
Plaintiffs favor. (Pl.'s Mot. at 1.) Plaintiff has not filed a motion to strike
under Rule 12 (f); Plaintiff has filed a motion for summary judgment under
Rule 56. (Id. at 6-7; Pl.'s Not. of Mot. (Dkt. 62).) Thus, the court examines
each affirmative defense pursuant to the summary judgment principles set
forth in Section III.B, infra. See generally Badar v. Swissport USA, Inc., 492
F. Supp. 3d 54, 58-59 (E.D.N.Y. 2020) (distinguishing Rule 56's require-
ments for summary judgment from the "[t]hree prerequisites" a plaintiff
"must show'' before a court "may grant a motion to strike defenses" under
Rule 12(f)) (internal citations omitted).
3 RPAPL sets forth strict notice requirements for foreclosure actions involv-
ing "residential real property'' as that phrase is defined in RPAPL
2
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I. 	BACKGROUND
The court assumes familiarity with the facts and extensive proce-
dural history as set forth in prior decisions. (10/30/2023 M&O;
Mem. 	& 	Order 	Dated 	4/12/2024 	("4/12/2024 	M&O")
(Dkt. 35).) Therefore, the court provides a summary of only the
pertinent facts and procedural history here.
A. 	Factual Background
The following facts are not in dispute.4
Plaintiff is a national banking association with its main office in
Wilmington, Delaware, and the owner of a pool of mortgage
loans including the one at issue in this case. 5 (Compl. 'l'f 8-9;
Defs.' Answer 'l l.) Borrower is the owner of the Property, and a
limited liability company organized under the laws of New York
State with an address in Brooklyn. (Sabbagh Deel. (Dkt. 33-11)
§ 1305(l)(a). Where the mortgaged property has tenants, the foreclosing
party must "deliver" notice of the foreclosure action to those tenants as set
forth in RPAPL § 1303, which the court discusses in more detail below,
infra Sections III.A.2 & III.B.4.
4 The undisputed facts are drawn, primarily, from the material facts set
forth in the parties' respective Local Rule 56.1 Statements. (PL's Loe. Civ.
R. 56.1 Stmt. ("PL's 56.1") (Dkt. 62-1); Defs.' Loe. Civ. R. 56.1 Resp. to Pl.'s
56.1 ("Defs.' 56.1") (Dkt. 63-1).) In reviewing Plaintiffs motion, the court
also "exercised its discretion to conduct an assiduous review of the record
in order to consider what the parties have failed to point out in [these
statements]," and considered "only facts that have been established by ad-
missible evidence." Windward Bora, LLC v. Regalado, 751 F. Supp. 3d 122,
127 (E.D.N.Y. 2024) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73
(2d Cir. 2001)); see also McGowan v. Stanley, No. 23-CV-7769, 2024 WL
5038633, at *2 (2d Cir. Dec. 9, 2024) (summary order) (same).
5 Therefore, for purposes of diversity jurisdiction, Plaintiff is a citizen of
Delaware. See OneWest Bank, N.A. v. Melina, 827 F.3d 214, 219 (2d Cir.
2016) (per curiam) (holding that "a national bank is a citizen only of the
state listed in its articles of association as its main office").
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'f'f 2, 8; Defs.' Answer 'f 2.) Guarantor is the sole member of Bor-
rower, and an individual citizen of New York. (Sabbagh Deel. 'f 2;
Sabbagh Aff. (Dkt. 63-8) 'f 2; Defs.' Answer 'f 6.) The ECB is al-
leged to hold subordinate interests in the Property, and is a New
York City agency with a New York City address. 6 (Compl. 'f 4;
ECB's Answer.) The Property is a commercial building "operating
as an apartment building." (Esteve Deel. (Dkt. 62-2) 'f 8.) The
subject loan documents identify the Property as a "dwelling
only," "multifamily'' property with "more than 6 residential
dwelling units." (Mortgage (Dkt. 62-6) at ECF pp.2, 15; Assign-
ment (Dkt. 62-7) at ECF p.2.)
On May 30, 2019, the Federal Home Loan Mortgage Corporation
("Freddie Mac") made a commercial mortgage loan on the Prop-
erty 	to 	Borrower 	in 	the 	original 	principal 	amount 	of
$1,480,000.00 (the "Loan"). (Defs.' 56.1 'f 1.) In connection with
the Loan, Freddie Mac and Borrower executed a note 	(the
"Note") and loan agreement (the ((Loan Agreement"). (Id. 'f'f 1, 2;
see also Note (Dkt. 62-5); Loan Agreement (Dkt. 62-4).) As secu-
rity for the Note, Borrower also executed and delivered to
Freddie Mac a consolidated extension and modification agree-
ment-the Mortgage. (Defs.' 56.1 'f 3; see also Mortgage.) Also
on that day, Guarantor executed a guaranty (the ((Guaranty''),
guaranteeing Borrower's obligations under the Note, the Mort-
gage, 	and other Loan documents. 7 (Defs.' 56.1 'f 5; see also
Guaranty 	(Dkt. 62-8).) 	Borrower recorded 	the Mortgage 	on
6 In this case, the ECB is a suable entity. RPAPL § 202-a. It is also properly
named as a defendant given its alleged interests in the Property. RPAPL
§ 1311(3).
7 In addition to the Note and the Mortgage, the phrase "other Loan docu-
ments" refers to and includes the Loan Agreement, the Guaranty, and the
Assignment, as well as "all other documents evidencing, securing, or exe-
cuted in connection with the Loan." (Defs.' 56.1 '! 6; Esteve Deel.'! 10.)
4
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June 5, 2019. (Defs.' 56.1 'l 3; Esteve Deel. 'l 6; see also Mortgage
at ECF p.2 (prepared 6/4/2019).)
On October 2, 2019, Freddie Mac assigned the Note and the
Mortgage to Plaintiff (the "Assignment"). (Defs.' 56.1 'l 4; see also
Assignment 	at 	ECF 	p.5 	(executed 	10/2/2019; 	effective
10/18/2019); Allonge to Note 	("Allonge") 	(Dkt. 62-5 at ECF
p.25).) The Assignment was recorded on October 24, 2019.
(Defs.' 56.1 'l 4; Esteve Deel. 'l 7; see also Assignment at ECF p.2
(prepared 10/23/2019).)
Beginning with the monthly Loan payment due on August 1,
2022, Borrower failed to comply with its obligations under the
Note. 	(Defs.' 56.1 'l'l 7-8; Note § 3(a) at ECF p.6; Esteve Deel.
'l'l 11-12; 	Payment 	History 	for 	Loan 	("Payment 	History'')
(Dkt. 62-9).) Borrower also failed to comply with its obligations
under the Loan Agreement by failing to pay the Property's water
and sewer bill, and property taxes. (Defs.' 56.1 'l 9; Loan Agree-
ment § 6.08 at ECF pp.38-39; Esteve Deel. 'l'l 13-14.)
Based on the foregoing payment failures, Plaintiff notified De-
fendants that Borrower was in default on the Loan by letter dated
November 29, 2022 (the "Default Letter"). (Defs.' 56.1 'l 10; Es-
teve Deel. 'l 15; see also Default Letter (Dkt. 62-10) at ECF p.3.)
Plaintiff demanded that Borrower cure the defaults by making
the required payments on or before December 9, 2022, and ex-
plained that failure to do so may result in acceleration of the
Loan, enforcement of the Guaranty, and the appointment of a
receiver for the Property ("Receiver''). 	(Defs.' 56.1 'l 10; Es-
teve Deel. 'l 15; see also Default Letter at ECF pp.3-4.) Borrower
failed 	to 	make 	the 	payments. 	(Defs.' 56.1 	'l'l 8, 12-13; 	Es-
teve Deel. 'l'l 12-13, 17-18; see also Payment History.)
Plaintiff mailed Defendants a second letter dated January 11,
2023 (the "Acceleration Letter"). (Defs.' 56.1 'l 11; Esteve Deel.
'l 16; see also Acceleration Letter (Dkt. 62-11).) Therein, Plaintiff
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acknowledged Borrower's continued defaults, accelerated the
Loan, and warned Defendants that failure to make full, "imme-
diate" 	payment 	of "all 	amounts 	owed" 	may 	result 	in 	the
appointment of a Receiver and foreclosure of the Property ''with-
out 	further 	notice." 	(Defs.' 	56.1 	'111; 	Esteve 	Deel. 	'[ 16;
Acceleration Letter at ECF pp.3-4.) Again, Borrower failed to pay.
(Defs.' 56.1 '!'I 8, 12-13; Esteve Deel. '1'112-13, 17-18; see al.so
Payment History.) This suit followed.
When Plaintiff commenced this action on February 13, 2023, it
was the owner and holder of, and in physical possession of, the
Note, the Mortgage, and other Loan documents. 	(Defs.' 56.1
'I'! 4, 6; Esteve Deel. 'I'! 7, 10; see al.so Compl. (attaching these
documents).)
B. 	Procedural History
Defendants initially failed to answer the Complaint or otherwise
appear in this case. The Clerk entered their Defaults. By Memo-
randum and Order dated October 3, 2023, the court granted
Plaintiffs motion for a default judgment of foreclosure and sale
of the Property against Borrower and appointed a Receiver.
(10/30/2023 M&O at 2.)
On November 16, 2023, Defendants entered their appearances.
Four days later, they stated their intention to move to vacate their
defaults based on, as relevant here, the claimed "meritorious de-
fense" that Plaintiff had "failed to assert compliance" with the
statutory notice requirements in RPAPL. 	(Defs.' Letter Dated
11/20/2023 (Dkt. 24) at 2, 3.) In direct response, and "out of an
abundance of caution," Plaintiff delivered a notice-purportedly
in compliance with RPAPL-on December 5, 2023 (the "Decem-
ber 2023 Notice"). (Pl.'s Resp. Letter Dated 2/13/2024 (Dkt. 30)
at 2; see al.so Dec. 2023 Not. (Dkt. 42-1); Aff. of Serv. of Dec. 2023
Not. ("Dec. 2023 Not. Aff.") (Dkt. 63-3) .)
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By Memorandum and Order dated April 12, 2024, the court
granted Defendants' motion to vacate. The court agreed with De-
fendants that Plaintiffs alleged failure to comply with RPAPL's
notice requirements amounted to a "meritorious defense" that
weighed in favor of vacating the default judgment in this case.
(4/12/2024 M&O at 6-8.) In doing so, the court highlighted
Plaintiffs apparent "attempt[] to cure the deficiency in notice,"
and explained that even if the December 2023 Notice otherwise
complied with RPAPL's content and form requirements, it would
"still be untimely under New York law'' because it was not "de-
livered" by the 10-day statutory deadline. 	(Id. 	at 7-8 	(citing
RPAPL § 1303(4)).)
After the court vacated their defaults, Defendants filed the An-
swer. 	Therein, 	Defendants 	assert 	ten 	affirmative 	defenses,
including that Plaintiff allegedly failed to comply with RPAPL's
notice requirements. (Defs.' Answer 'I 53.) In response, Plaintiff
moved for an order either: (i) "Holding that Plaintiff has com-
plied" 	with 	RPAPL's 	requirements 	"through 	service 	of 	the
[December 2023 Notice]"; or (ii) "Alternatively, granting Plain-
tiff leave to amend its Complaint and re-serve the amended
complaint and [the RPAPL] notice" on the Property's tenants.
(Pl.'s Not. of Mot. to Hold Compliance (Dkt. 40) at 1.) Plaintiff
did not identify under which Rule the motion was made. (Id.;
Pl.'s Mot. to Hold Compliance (Dkt. 40-1).)
On January 6, 2025, the court denied Plaintiffs motion in an oral
ruling. (Tr. of 1/6/2025 Pre-Mot. Conf. (Dkt. 75) at 6:06-07.)
First, the court concluded that properly construed, the motion
was a motion to strike an affirmative defense under Rule 12(f).
(Id. at 6:09-17.) Second, the court concluded that it would not
be appropriate to consider a motion to strike, given the "numer-
ous open questions of law and fact" at that time. (Id. at 6: 18-
7:06.) Regarding this second conclusion, the court highlighted
7
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the open question of law as to whether Defendants "have stand-
ing to raise an affirmative defense under [RPAPL]," and the open
factual questions about the "timing and manner" of Plaintiff's de-
livery of the December 2023 Notice. (Id. at 7:07-10.) The court
directed the parties to address those questions in their summary
judgment briefing. 	(Id. 	at 7:11-17.) The parties' briefing fol-
lowed.
II. 	LEGAL STANDARDS
A. 	Summary Judgment
Rule 56 authorizes summary judgment "only if 'the movant
shows that there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law."' Capitol
Recs., LLCv. Vimeo, Inc., 125 F.4th 409,418 (2d Cir. 2025) (quot-
ing Fed. R. Civ. P. 56(a)); see also Tolan v. Cotton, 572 U.S. 650,
656-57 (2014) (per curiam) (same).8 Thus, the movant carries
two burdens: (1) to demonstrate its entitlement to judgment as
a matter of law; and (2) to show that no "genuine" factual dis-
pute exists as to any "material" issue. 9 Anderson v. Liberty Lobby,
Inc. (Liberty Lobby), 477 U.S. 242, 256 (1986); Lara-Grimaldi v.
Cnty. of Putnam, 132 F.4th 614, 633 (2d Cir. 2025) (same). A
factual dispute is genuine "if the evidence is such that a reasona-
ble jury could return a verdict for the nonmoving party." Liberty
Lobby, 477 U.S. at 248. An issue is material if it "might affect the
outcome of the suit under the governing law." Id.
8 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
9 When, as here, the plaintiff moves for summary judgment, it carries the
additional "burden of producing ... evidence that would support a jury
verdict" in its favor. Liberty Lobby, 477 U.S. at 256 (''The movant has the
burden of showing that there is no genuine issue of fact, but the plaintiff is
not thereby relieved of his own burden of producing in tum evidence that
would support a jury verdict.").
8
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The court's primary function is to determine if-on the evidence
presented-the movant has carried its burden to establish that it
is "entitled to judgment as a matter of law." Kemp v. Regeneron
Pharms., Inc., 117 F.4th 63, 68 (2d Cir. 2024). In answering this
question, the court "must view the evidence in the light most fa-
vorable to the opposing party," Tolan, 572 U.S. at 657; see also
Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022) (same), and
"resolve all ambiguities and draw all permissible factual infer-
ences" in the nonmovant's favor, Koral v. Saunders, 36 F.4th 400,
408 (2d Cir. 2022).
B. 	New York Mortgage Foreclosure
In New York, "mortgage foreclosure actions are governed by Ar-
ticle 13 of RPAPL." Blue Castle (Cayman) Ltd. v. Tawil, No. 24-
CV-1082 (MKB), 2025 WL 2482306, at *3 (E.D.N.Y. Aug. 28,
2025) (quoting One West Bank, N.A. v. Conklin, 310 F.R.D. 40, 44
(N.D.N.Y. 2015)); Green Mountain Holdings (Cayman) LTD v.
501 	Lafayette 	Ave 	LLC, 	No. 21-CV-5844 	(MKB), 	2025 	WL
2494292, at *5 (E.D.N.Y. Aug. 28, 2025) (same). Thus, to prevail
at summary judgment, a plaintiff "must satisfy'' both: (1) the
"common law elements" of a mortgage, note, and a defendant's
default; and (2) the applicable "statutory [notice] requirements
set forth in Article 13." 10 Wilmington Sav. Fund Socy, FSB v. Fer-
nandez, 	712 	F. Supp. 3d 	324, 	332 	(E.D.N.Y. 	2024) 	(citing
10 Article 13 mandates the delivery of specific notices to the mortgaged
property's homeowner(s), tenants, or both, depending on whether the
property is "owner-occupied" or occupied by "any tenants," and on the
number of "dwelling units." RPAPL § 1303(1). These requirements are
"substantive in nature" (they govern a plaintiffs "entitlement to ... fore-
closure relief') and thus, "must be followed in federal court." Fernandez,
712 F. Supp. 3d at 333-34; Razionale, 2026 WL 412089, at *1 (citing Ar-
onson v. Callahan, 83 N.Y.S.3d 792, 793-94 (N.Y. Sup., Ulster Cnty.
2018)); Deutsche Bank Nat'l Tr. Co. as Tr. for GSM Home Equity Tr. 2007-
5, Asset-Backed Certificates, Series 2007-5 v. Shewtahal, No. 24-CV-7892
9
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Conklin, 310 F.R.D. at 44); Green Mountain, 2025 WL 2494292,
at *5 (same); PHH Mortg. Corp. v. Razionale, No. 25-CV-3029
(AT), 2026 WL 412089, at *1 (S.D.N.Y. Feb. 13, 2026) (same).
If a plaintiff establishes the common law and statutory require-
ments, it makes out a prima fade case, meaning that the plaintiff
"has a presumptive right to foreclose that can only be overcome
by an affirmative showing by the mortgagor." Golden Bridge ILC
v. 150-30 Ave Realty LLC, No. 23-CV-09045 (NCM) (PK), 2025
WL 1548859, at *4 (E.D.N.Y. May 30, 2025); see also Plenitude
Cap. LLC v. Utica Ventures, LLC, No. 18-CV-2702 (MKB) (RER),
2019 WL 4014840, at *4-5 (E.D.N.Y. June 11, 2019) (collecting
examples), 	report 	and 	recommendation 	adopted, 	2019 	WL
3543610 (E.D.N.Y. Aug. 5, 2019). That is, if the plaintiff estab-
lishes a prima fade case, then the burden "shifts to the defendant
to raise a triable issue of fact with respect to the plaintiffs proof
or an affirmative defense." Fernandez, 712 F. Supp. 3d at 333
(citing Gustavia Home, LLC v. Bent, 321 F. Supp. 3d 409, 414
(E.D.N.Y. 	2018)); 	Tawil, 	2025 WL 2482306, 	at *3 	(same);
see also CIT Bank N.A. v. Donovan, 856 F. App'x 335, 336-37
(2d Cir. 2021) (summary order) ("If the plaintiff establishes a
prima fade case, 'the burden then shifts to the defendant to
demonstrate the existence of a triable issue of fact as to a bona
fide defense to the action, such as waiver, estoppel, bad faith,
fraud, or oppressive or unconscionable conduct on the part of the
(ERK) (RML), 2025 WL2402824, at *4n.2 (E.D.N.Y. Aug.19, 2025) ("Alt-
hough the requirements set forth in Article 13 of RPAPL are sometimes
described as 'procedural,' district courts in this circuit have concluded that
these requirements are 'substantive in nature' and thus must be followed
in federal court as well as state court."); see also Berk v. Choy, 607 U.S.
_, 2026 WL 135974, at *6 (U.S. Jan. 20, 2026) (distinguishing a proce-
dural rule, which "regulates only the process for enforcing [the parties']
rights," from a substantive rule that alters "the rights themselves, the avail-
able remedies, or the rules of decision" by which the court adjudicates
either).
10
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plaintiff.") (quoting Capstone Bus. Credit, LLC v. Imperia Fam. Re-
alty, LLC, 70 A.D.3d 882, 883 (2d Dep't 2010)).
III. DISCUSSION
The court denies the portion of Plaintiffs motion for summary
judgment on its RPAPL claim and grants in part and denies in
part the portion of the motion requesting summary judgment on
each of Defendants' ten affirmative defenses.
A. 	New York Mortgage Foreclosure
Plaintiff has failed to establish a prima facie case on its RPAPL
claim. Although Plaintiff has satisfied the common law elements,
it has failed to demonstrate compliance with the applicable stat-
utory 	requirements. 	Therefore, 	the 	court 	denies 	summary
judgment to Plaintiff on its New York mortgage foreclosure
claim. U.S BankNat'lAss'n v. 22-33 Brookhaven, Inc., 219 A.D.3d
657, 663, 666 (2d Dep't 2023) (concluding that the lower court
"should have denied those branches of the plaintiffs cross-mo-
tion which were for summary judgment on the complaint"
because "the plaintiff failed to establish, prima facie, that it com-
plied with RPAPL 1303").
1. 	Common Law Elements
Plaintiff asserts that it has satisfied the common law elements of
a note, mortgage, and a defendant's default. (Pl.'s Mot. at 1, 7-
15, 16.) Defendants respond that Plaintiff has failed to provide
admissible proof of Borrower's default on the Loan. (Defs.' Opp.
at 9-10.)
"In moving for summary judgment in an action to foreclose on a
mortgage," a plaintiff establishes the common law elements of a
prima facie case through "the production of the mortgage, the
unpaid note, and evidence of default." Deutsche Bank Nat'l Tr. Co.
v. Pirozzi, 230 A.D.3d 736, 737 (2d Dep't 2024); Tawil, 2025 WL
11
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2482306, at *3 (same); Deutsche Bank Nat'l Tr. Co. v. Kingsbury,
171 A.D.3d 871,872 (2d Dep't 2019) (same).
Plaintiff has provided evidence of the Mortgage and the Note by
producing a copy of each. (Note; Mortgage; see also Allonge; As-
signment.) Plaintiff has also provided evidence of Borrower's
default by producing the Declaration of Sabastian Esteve (the
"Esteve Declaration"), the Payment History annexed to the Es-
teve Declaration, and the Default and Acceleration Letters sent
to Defendants notifying them of Borrower's defaults. (Esteve
Deel.; Payment History; 	Default Letter; Acceleration Letter.)
Plaintiffs "production of [these documents] provides sufficient
evidence" of a mortgage, unpaid note, and a defendant's default.
Green Mountain, 2025 WL 2494292, at *6 (first citing Windward
BoraLLCv. Mohamed, No. 24-437, 2025 WL 88422, at *2 (2d Cir.
Jan. 14, 2025) 	(summary order); and then citing Bent, 321
F. Supp. 3d at414).
There also is no genuine dispute that Borrower is in default. In-
stead, Defendants argue that Plaintiffs evidence is insufficient.
(Defs.' Opp. at 9-10.) Defendants argue that the court should dis-
regard the Payment History because "[t]here is nothing therein
connecting [it] to the subject mortgage loan" and because the
Payment History "is entirely indecipherable and cannot consti-
tute proof of anything, much less a default." (Id. at 9.) And,
Defendants' argument goes, that after disregarding the Payment
History, the only evidence of Borrower's default is the Esteve Dec-
laration, which, by itself, cannot establish Borrower's default
because Mr. Esteve "demonstrated no personal knowledge" of
the business records of any loan servicers prior to KeyBank. (Id.)
Defendants' argument fails at each step.
First, the court is not persuaded by Defendants' unsubstantiated
characterizations of the Payment History. The Esteve Declaration
directly connects Borrower's default with the annexed Payment
12
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History. (Esteve Deel. ff 12 ("A true and correct copy of the [Pay-
ment] 	History demonstrating Borrower's payment default is
attached hereto as Exhibit 7.").) And, the Payment History dis-
tinctly shows that no Loan payments have been made since the
payment due on July 1, 2022. (Payment History.) Consequently,
on this record, the court concludes that the Payment History does
constitute proof of Borrower's default. See United States v. Paugh,
332 F. Supp. 2d 679, 	681 	(S.D.N.Y. 2004) 	(finding that the
"[p]ayment 	[h]istory sufficiently establishes 	the default ele-
ment"); OneWest Bank, N.A. v. Hawkins, No. 14-CV-4656 (NGG)
(CLP), 2015 WL 5706945, at *6 (E.D.N.Y. Sept. 2, 2015) (con-
cluding that the plaintiffs submission of an affidavit attaching a
copy of a screen-print summarizing the relevant payoff calcula-
tions related to the loan "demonstrates the default on the loan
through the failure of defendants to make monthly payments as
they became due"), report and recommendation adopted, 2015
WL 5706953 (E.D.N.Y. Sept. 28, 2015); Freedom Mortg. Corp. v.
Petriello, No. 22-CV-7310 	(NJC) 	(JMW), 2025 WL 1726320,
at *9 (E.D.N.Y. June 20, 2025) (finding that the plaintiff estab-
lished the default element by submitting an affidavit confirming
that the borrowers failed to make payments and a payment his-
tory evidencing their default); Tawil, 2025 WL 2482306, at *4
(finding the default element satisfied where the plaintiff submit-
ted a copy of the payment history confirming the defendant's
failure to make monthly payments).
Second, 	Defendants are 	mistaken that Mr. 	Esteve failed 	to
demonstrate personal knowledge. A plaintiff establishes the de-
fault element if it produces "proof in the form of an affidavit of a
person with knowledge." Bent, 321 F. Supp. 3d at415; Plenitude,
2019 WL 4014840, at *4 n.6. Mr. Esteve swore on his ''personal
knowledge of the facts and events" in this case and his review of
the records "kept by KeyBank and [Plaintiff] on the Loan," (Es-
teve Deel. 'I 1)-including all Loan documents "made and kept in
13
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the ordinary course of business," (id. 'l 10)-that Borrower de-
faulted on the Loan beginning with the monthly payment due on
August 1, 2022, (id. 'l 12), and that Defendants "failed to cure
the defaults and remain in default," (id. 'l 17). Accordingly, the
Esteve Declaration amounts to "proof' of Borrower's default "in
the form of an affidavit of a person with knowledge." Bent, 321
F. Supp. 3d at 415. As such, the Esteve Declaration provides "suf-
ficient evidence" of Borrower's default. 11 Green Mountain, 2025
WL 2494292, at *6 (quoting Mohamed, 2025 WL 88422, at *2
(concluding at summary judgment that the plaintiff satisfied the
default element by submitting an affidavit stating that ''based
upon [the declarant's] review of the computerized business rec-
ords for the [loan]," the loan is "currently in default and due")).
Finally, even assuming that Defendants were correct (meaning
that the court cannot consider the Payment History), their argu-
ment still fails because where, as in this case, a plaintiff produces
copies of the default notices it sent to the defaulting defendant,
along with an affidavit attesting to the defendant's default based
on personal knowledge and review of the plaintiffs business rec-
ords, the default element is satisfied. 12 See CIT Bank, N.A. v.
11 Defendants' reliance on Bank of N. Y. Mellon v. Demasco, 226 A.D.3d 855
(2d Dep't 2024) is inapposite. (Defs.' Opp. at 9.) InDemasco, the New York
Appellate Division, Second Department held only that the subject affidavit
was inadequate because the plaintiff could not "establish that the records
provided by the [prior servicer] were incorporated into the recipient's own
records and routinely relied upon by the recipient in its own business." 226
A.D.3d at 857. Not so here. Mr. Esteve attests that the records he reviewed
include the records of any prior loan servicers, which were provided to him
and incorporated into KeyBank's own records. (Esteve Deel. '11).
12 For this reason, Defendants' invocation of the Second Department's de-
cisions in Smith and Medina is unpersuasive. (Defs.' Opp. at 9-10.) In those
cases, the Appellate Division found that an affidavit alone "failed to provide
proof of the defendant's default in payment of the note in admissible form,
as the affiant failed to attach copies of the business records on which she
relied." U.S. Bank Trust, N.A. v. Smith, 217 A.D.3d 899, 900 (2d Dep't
14
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Mitchell, No. 17-CV-1969 (ILG) (SMG), 2021 WL 54081, at *3
(E.D.N.Y. Jan. 6, 2021); Bent, 321 F. Supp. 3d at415 &n.9. Plain-
tiff produced the Default and Acceleration Letters it sent to
Defendants. The letters notified Defendants of Borrower's initial
and continued defaults on the Loan. (Default Letter; Acceleration
Letter.) Defendants neither deny that they received the letters
nor maintain that Borrower cured the defaults. (See Defs.' Opp.
at 7 ("Plaintiff provided copies of the November 9, 2022 notice
of default.'' (citing Default Letter)), 9-10 (arguing that Plaintiffs
proof of Borrower's default constitutes inadmissible hearsay).)
Thus, Defendants' argument that Plaintiff failed to provide proof
of Borrower's default in admissible form, fails to raise a triable
issue of material fact.
For the above reasons, the court concludes that Plaintiff has sat-
isfied the common law elements of a prima facie 	case for
foreclosure. Plaintiff has produced sufficient evidence of the
Mortgage, the unpaid Note, and Borrower's default, and Defend-
ants have failed to raise a triable issue of material fact as to this
threshold inquiry.
2. 	Statutory Requirements
The court concludes that Plaintiff has failed to satisfy the statu-
tory requirements of its prima facie case for foreclosure.
Plaintiffs Local Rule 	56.1 	Statement makes no mention of
RPAPL's notice requirements nor Plaintiffs compliance there-
with. (Pl.'s 56.1) And in moving for summary judgment, Plaintiff
does not seek to affirmatively demonstrate its compliance with
the statutory requirements. (See Pl.'s Mot. at 1.) Instead, Plaintiff
addresses the requirements in the portion of its motion seeking
2023); U.S. Bank Nat'l Ass'n v. Medina, 230 A.D.3d 1371, 1376 (2d Dep't
2024) (same). Here, however, the Esteve Declaration attaches the Default
Letter, the Acceleration Letter, the Payment History, and the other Loan
documents that Mr. Esteve reviewed.
15
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to "strike" the Answer. (Id. at 1, 13-15.) There, Plaintiff argues
that Defendants "lack standing" to assert a Section 1303 "affirm-
ative defense" and, alternatively, that any such defense is "moot."
(Id. at 13, 14.) Both arguments are premised on Plaintiff's asser-
tion that the December 2023 Notice complies with the applicable
notice requirements in Section 1303 of RPAPL. (Id. at 13 (argu-
ing that Defendants' Section 1303 defense is "moot" because
Plaintiff "served" the December 2023 Notice "four months prior
to the [c]ourt granting Defendants' motion to vacate"), 14-15
(arguing that the December 2023 Notice "meets all the require-
ments set out in RPAPL § 1303(4)").)
Defendants respond that Plaintiff did not strictly comply with
Section 	1303, 	and 	that 	this 	failure 	dooms 	Plaintiff's 	case.
(Defs.' Opp. at 1.)
In its reply, Plaintiff maintains that Defendants "lack standing to
raise any defense related to RPAPL § 1303" and that any such
defense is moot because "proper service of the [December 2023
Notice] 	took place before Defendants' default was vacated."
(Pl.'s Reply at 2.) Plaintiff also asserts that while the December
2023 Notice was "untimely'' delivered, its untimely delivery does
"not prove that the requisite [Section 1303] notice ... was not
properly served." (Id. at 5.)
New York authority is clear that a plaintiff's burden to establish
its entitlement to a foreclosure judgment as a matter of law in-
cludes 	the 	burden 	to 	demonstrate 	"strict compliance" with
RPAPL's notice requirements. OneWestBank, N.A. v. Ruiz, No. 14-
CV-3207 (RRM) 	(RLM), 2018 WL 1318983, at *4 (E.D.N.Y.
Mar. 13, 2018) (quoting Aurora Loan Servs.) LLCv. Weisblum, 85
A.D.3d 	95, 	103 	(2d Dep't 	2011)); 	see also 	Regalado, 	751
F. Supp. 3d at 130 ("Failure to comply with the notice require-
ment is fatal to a party's foreclosure claim.").
16
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Here, Plaintiff asserts that it complied with the applicable notice
requirements (in Section 1303) by delivering the December 2023
Notice. (Pl.'s Mot. at 13-15; Pl.'s Reply at 2, 5.) Thus, the court
proceeds by determining whether the December 2023 Notice
strictly complies with Section 1303's notice requirements. 13
"Notice, the final element of a prima fade case for mortgage fore-
closure and sale, gives force to New York State protections to
homeowners and tenants." Plenitude, 2019 WL 4014840, at *4.
Among these protections is Section 1303. Id. 	(citing RPAPL
§ 1303); First Nat'l Bank of Chicago v. Silver, 73 A.D.3d 162, 163,
169 (2d Dep't 2010) (holding that in a foreclosure action, the
plaintiff has the ''burden of showing compliance" with Section
1303). Section 1303 states, in pertinent part, that the "foreclos-
ing party in a mortgage foreclosure action, involving residential
real property shall provide notice" entitled Notice to Tenants of
Buildings in Foreclosure to "any tenant of a dwelling unit in ac-
cordance with" 	specific content, form, 	timing, 	and 	delivery
requirements (the "Notice to Tenants"). RPAPL § 1303(1)(b),
(4), (5). In tum, Section 1305, entitled Notice to Tenants, defines
"residential real property'' as "real property located in this state
improved by any building or structure that is or may be used, in
whole or in part, as the home or residence of one or more per-
sons, and shall include any building or structure used for both
residential and commercial purposes." RPAPL § 1305(1)(a).
Here, the Property is "operating as an apartment building," and
thus "residential real property'' for purposes of Section 1303. 14
13 The court addresses Plaintiffs arguments challenging Defendants' pur-
ported "affirmative defense" based on Plaintiffs failure to comply with
Section 1303 in Section III.B.4, infra.
14 In a letter to the court dated February 13, 2024, Plaintiff had initially
argued that Section 1303 "is inapplicable" because the section "only ap-
plies to a mortgage foreclosure action involving 'residential real property,"'
17
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(Esteve Deel. 'f 8); RPAPL § 1305(1)(a). Specifically, the Property
is the "home or residence" of multiple persons. (Sabbagh Deel.
-I 7; Sabbagh Aff. 'f 4; Lysenko Aff. (Dkt. 63-9) 'f 2 (tenant of
Apartment lR); Shtridler Aff. (Dkt. 63-10) 'f 2 (tenant of Apart-
ment lR); Grossman Aff. (Dkt. 63-11) 'f 2 (tenant of Apartment
3R); Cinus Aff. (Dkt. 63-12) 'f 2 (tenant of Apartment 3F); Solo-
mon Aff. (Dkt. 63-13) 'f 2 (tenant of Apartment lF).) Therefore,
to succeed on its motion for summary judgment, Plaintiff "must
establish not only a mortgage, a note, and proof of default," but
also "strict compliance" with Section 1303's Notice to Tenants
requirements. Tawil, 2025 WL 2482306, at *4; Wells Fargo Bank,
N.A. v. McMahon, 202 A.D.3d 886, 887 (2d Dep't 2022) ("It is the
plaintiffs burden, 	on its motion for summary judgment, to
demonstrate its strict compliance with the applicable provisions
of RPAPL.").
Section 1303 "mandates," among other things, that the Notice to
Tenants "be delivered [within] 10 days of service of the summons
and complaint, be in bold, 14-point type, be printed on a colored
paper that is other than the color of the summons and complaint,
that the title of the notice be in bold, 20-point type, and include
specific language." 22-33 Brookhaven, 219 A.D.3d at 663 (citing
RPAPL § 1303(4), (5)). "For buildings with five or more dwelling
units," the section also demands that "a legible copy of the notice
shall be posted on the outside of each entrance and exit of the
building." RPAPL § 1303(4).
The record establishes that the Property has "more than 6 resi-
dential dwelling units." (Mortgage at ECF p.15.) Therefore, to
make a prima fade case, Plaintiff must show not only that the
December 2023 Notice complied with Section 1303's content and
and "this foreclosure action relates to a commercial loan, made to a com-
mercial borrower, strictly for business purposes." (Pl.'s Resp. Letter Dated
2/13/2024 at 2.) In the instant motion, Plaintiff appears to have aban-
doned this erroneous argument.
18
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form requirements, but also that it was "delivered within ten days
of the service of the summons and complaint'' in this action, and
that a "legible copy'' was "posted on the outside of each entrance
and exit of the [Property]." RPAPL § 1303(4).
The evidence before the court establishes only that the December
2023 Notice complied with Section 1303 to the extent that it was
printed on colored paper. (Dec. 2023 Not.; Dec. 2023 Not. Aff.)
Thus, the court must deny summary judgment to Plaintiff on its
RPAPL claim. 22-33 Brookhaven, 219 A.D.3d at 663-65 (revers-
ing grant of plaintiffs summary judgment motion because the
plaintiff "failed to establish, prima fade, that it complied with
RPAPL 1303" given that the "affidavits of service ma[d]e no aver-
ments that the RPAPL 1303 notice ... complied with the
requirements of RPAPL 1303, other than that it was printed on
colored paper").
As Plaintiff concedes, the December 2023 Notice was "untimely."
(Pl.'s Reply at 5.) Section 1303 requires the foreclosing party to
deliver the Notice to Tenants ''within ten days of the service of
the summons and complaint." RPAPL § 1303(4). Plaintiff served
Borrower with the summons and complaint on March 2, 2023.
(See Executed Summons as to Borrower (Dkt. 6).) Thus, Plaintiff
was required to deliver the Notice to Tenants by March 12, 2023.
Plaintiff failed to do so. (Dec. 2023 Not. Aff. (swearing that the
December 2023 Notice was delivered on December 5, 2023).) By
delivering the December 2023 Notice over 260 days late, Plaintiff
did not "strictlycompl[y]"with Section 1303. MenillLynch Credit
Corp. v. Nicholson, 210 A.D.3d 758, 761 (2d Dep't 2022) (revers-
ing grant of plaintiffs summary judgment motion because the
plaintiff failed to establish it had "strictly complied with RPAPL
1303"). Therefore, Plaintiffs motion for summary judgment
must be denied.
Plaintiffs argument that the court should excuse the "untimely''
delivery of the December 2023 Notice because the delay did not
19
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"prejudice" the rights of the Property's tenants is unavailing. (Pl.'s
Reply at 5.) New York courts require "strict compliance" with
Section 1303's requirements. 22-33 Brookhaven, 219 A.D.3d
at 663-64. This is true even if the "absence of prejudice" stem-
ming from a defective notice is "apparent." CIT Bank, N.A. v.
Anderson, No. 16-CV-1712 (ERK) (PK), 2019 WL 3842922, at *3
(E.D.N.Y. Aug. 14, 2019) (citing Hudson City Sav. Bank v. DePas-
quale, 113 A.D.3d 595, 596 (2d Dep't 2014)).
Moreover, the New York Appellate Division, Second Department
has already considered and struck down the very argument that
Plaintiff advances now, concluding that "actual or constructive
notice" does not suffice-not even "under circumstances where
the borrower has not shown prejudice from the lender's failure to
strictly comply with the statute." Weisblum, 85 A.D.3d at 103
(holding that a "plaintiffs failure to show strict compliance re-
quires dismissal"), abrogated on other grounds by Citibank, N.A.
v. Conti-Scheurer, 172 A.D.3d 17 (2d Dep't 2019); see also Ander-
son, 	2019 	WL 	3842922, 	at *3 	(E.D.N.Y. 	Aug. 	14, 	2019)
(observing that the Second Department has "departed from [the
general] rule ... that notice serves to eliminate prejudice ... in
the narrow context of residential mortgage foreclosures, requir-
ing strict compliance with the RPAPL's notice provisions even where
no reliance on the defective notice is alleged") (emphasis added)
(citing Hudson City, 113 A.D.3d at 596).
Second, the undisputed evidence also shows that Plaintiff failed
to post a copy of the December 2023 Notice at each of the Prop-
erty's entrances and exits. (Dec. 2023 Not. Aff.) The record
establishes that there are "two entrances to the building." (Deel.
of Receiver as to Property Conditions (Dkt. 27) 'T 4; Sabbagh
Deel. 'T 4 (attesting that he "never saw a notice ... posted at the
outside of either entrance/exit of the Property''); Sabbagh Aff. 'T 4
(same); Lysenko Aff. 'T 3 (same); Shtridler Aff. 'T 3 (same); Gross-
man Aff. 'T 3 (same); Cinus Aff. 'T 3 (same); Solomon Aff. 'T 3
20
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(same).) Plaintiff has produced evidence establishing only that
the December 2023 Notice was delivered by "affixing and taping
a true copy to the entrance door of [the] [P]roperty." (Dec. 2023
Not. Aff. (emphasis added).) Just one. By failing to establish that
the December 2023 Notice was "posted on the outside of each
entrance and exit," Plaintiff has failed to demonstrate strict com-
pliance with Section 1303 for this additional reason. RPAPL
§ 1303(4) (emphasis added).
***
For the above reasons, Plaintiff has failed to strictly comply with
Section 1303. Thus, Plaintiff has not established its entitlement
to judgment as a matter of law. Fed. R. Civ. P. 56(a). Therefore,
the court denies the portion of Plaintiffs motion for summary
judgment on its RPAPL claim.
B. 	Affirmative Defenses
For the reasons explained below, the court grants summary judg-
ment to Plaintiff on all but Defendants' tenth affirmative defense
due to Plaintiffs failure to comply with Section 1303.
Plaintiff moves "to strike the Answer" on the basis that there is
no dispute of material fact as to any one of Defendants' ten af-
firmative defenses. 15 (Pl.'s Mot. at 1, 8-16.) Defendants did not
15 As numbered in the Answer, Defendants' affirmative defenses are as fol-
lows: 	(1) personal jurisdiction, (Defs.' Answer '142 	(first affirmative
defense)); (2) statute of limitations, (id. '143 (second affirmative de-
fense)); 	(3) statute of frauds, 	(id. 	'144 (third affirmative defense));
(4) waiver, (id. 'I 45 (fourth affirmative defense)); (5) estoppel, (id. 'I 46
(fifth affirmative defense)); (6) laches, (id. '147 (sixth affirmative de-
fense)); (7) "res judicata and/or collateral estoppel," (id. '148 (seventh
affirmative defense)); (8) Plaintiff's "failure to meet [a] condition prece-
dent contained in [the] [M]ortgage," (id. '1'149-51 (eighth affirmative
defense)); 	(9) standing, 	(id. 	'152 	(ninth 	affirmative 	defense)); 	and
(10) Plaintiff's "failure to meet [a] condition precedent under RPAPL
§ 1303," (id. '153 (tenth affirmative defense)).
21
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specifically address this aspect of Plaintiffs motion in their brief-
ing. 16 (See generally Defs.' Opp.).
"Summary judgment is not an all-or[-]nothing proposition." In re
Am. Express Anti-Steering Rules Antitrust Litig., 361 F. Supp. 3d
324, 334 (E.D.N.Y. 2019) (quoting In re Methyl Tertiary Butyl
Ether Prods. Liab. Litig., 824 F. Supp. 2d 524, 533 (S.D.N.Y.
2011)). Instead, a party "may move pursuant to Rule 56(a) for
summary judgment as to an entire claim or defense, as well as
part of a claim or defense." Id. 	(citing Fed. R. Civ. P. 56(a)).
"Where a plaintiff uses a summary judgment motion, in part, to
challenge the legal sufficiency of an affirmative defense-on
which the defendant bears the burden of proof at trial-a plain-
tiff 'may satisfy its Rule 56 burden by showing that there is an
absence of evidence to support an essential element of the [de-
fendant]'s case."' F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.
1994) (quoting DiCola v. SwissRe Holding (North America), Inc.,
996 F.2d 30 (2d Cir. 1993)); see also Regalado, 751 F. Supp. 3d
at 131 (same); Green Mountain, 2025 WL 2494292, at *7 (same).
That is, where "the burden of proof at trial would fall on the non-
moving party, the moving party can shift the initial burden by
pointing to a lack of evidence to go to the trier of fact on an es-
sential element of the nonmovant's claim." McKinney v. City of
Middletown, 49 F.4th 730, 738 (2d Cir. 2022); see also Wilming-
ton PT Corp. v. Gray, No. 19-CV-1675 (AMD) (TAM), 2025 WL
857979, at *3 (E.D.N.Y. Mar. 19, 2025) ("A plaintiff challenging
16 However, Defendants did fully brief their arguments that Plaintiff failed
to comply with the "contractually mandated" notice and cure requirements
in Section 8.01 (s) of the Mortgage, and with the Notice to Tenants require-
ments in Section 1303 of RPAPL. (Defs.' Opp. at 3-6 (Section 1303), 6-9
(Section 8.01 (s)) .) These arguments correspond to Defendants' eighth and
tenth affirmative defenses, respectively. (Defs.' Answer '!'I 49-51 (Sec-
tion 8.01 (s)), 	53 	(Section 1303)).) The court addresses 	the 	parties'
respective arguments on each of these issues below, infra Section III.B.3
(Section 8.0l(s)), 4 (Section 1303).
22
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the sufficiency of an affirmative defense on summary judgment
may satisfy its burden by pointing to an absence of evidence to
support 	an 	essential 	element 	of the 	affirmative 	defense.").
"Where there is an absence of evidence to support an essential
element of a defense, with respect to that defense 'there can be
no genuine issue as to any material fact since a complete failure
of proof concerning an essential element of the affirmative de-
fense necessarily renders all other facts immaterial."' Regalado,
751 F. Supp. 3d at 131 (quoting Giammettei, 34 F.3d at 54). Ac-
cordingly, a court may grant the plaintiff summary judgment on
an affirmative defense if its "review of the record in a light most
favorable to the defendant reveals the absence of evidence sup-
porting an essential element of the defense." Giammettei, 34 F.3d
at 55; Lifeguard Licensing Corp. v. Ann Arbor T-Shirt Co., LLC,
No. 15-CV-8459 	(LGS), 	2018 	WL 	3364388, 	at *1 	(S.D.N.Y.
July 9, 2018) (same).
Importantly, "Rule 56 does not allow district courts to automati-
cally grant summary judgment on a claim simply because the
summary judgment motion, or relevant part, is unopposed."
Creaven v. Erickson, No. 22-874, 2023 WL 4247213, at *3 (2d Cir.
June 29, 2023) (summary order) (quoting Jackson v. Fed. Ex-
press, 766 F.3d 189, 194 (2d Cir. 2014)); Green Mountain, 2025
WL 2494292, at *7 (same). Rather, in deciding the movant's un-
opposed claim, "the district court must still assess whether the
moving party ha[s] fulfilled its burden of demonstrating that
there is no genuine issue of material fact and its entitlement to
judgment as a matter of law." Jones v. Lamont, 379 F. App'x 58,
59 (2d Cir. 2010) (summary order) (quoting Vermont Teddy Bear
Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004));
Creaven, 2023 WL4247213, at *3 (same); Green Mountain, 2025
WL 2494292, at *7 (same).
Below, the court considers Defendants' affirmative defenses in
the following groupings: (1) standing; (2) statute of limitations;
23
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(3) Plaintiffs failure to comply with Section 8.01 (s) of the Mort-
gage; 	(4) Plaintiffs failure 	to 	comply with Section 1303 	of
RPAPL; and (5) remaining defenses.
1. 	Standing
Plaintiff moves for summary judgment on Defendants' ninth af-
firmative defense, which asserts that "Plaintiff lacks standing to
foreclose ... because it cannot demonstrate that it was in posses-
sion of the ... [N]ote and [M]ortgage at the time this action was
commenced." (Pl.'s Mot. at 12; Defs.' Answer 'f 52.)
A "plaintiff must establish its standing to be entitled to relief."
Emigrant Bank v. Cohen, 205 A.D.3d 103, 111 (2d Dep't 2022);
Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 981 (2d Dep't
2015) 	(same); Donovan, 856 F. App'x at 336 	(same). Under
NewYork law, "[s]tanding in residential mortgage foreclosure
actions may be established any of three ways": (1) "where the
plaintiff is the original lender in direct privity with the defend-
ant"; (2) ''where the plaintiff is a holder in physical possession of
the note prior to the commencement of the action, with an al-
longe ... to the plaintiff"; or (3) ''when the note underlying an
action was assigned to the plaintiff prior to the date of com-
mencement of the action." Cohen, 205 A.D.3d at 112 (quoting
Wilmington Sav. Fund Socy, FSB v. Matamoro, 200 A.D.3d 79,
90-91 (2d Dep't 2021)). That is, "a plaintiff establishes its stand-
ing 	in 	a 	[New 	York] 	mortgage 	foreclosure 	action, 	by
demonstrating that, when the action was commenced, it was ei-
ther the holder or assignee of the underlying note." Melina, 827
F.3d at 222; Courchevel 1850 LLC v. Koznitz I LLC., No. 23-CV-
7263, 2025 WL 1512953, at *2 (2d Cir. May 28, 2025) (sum-
mary order) (same). "New York courts have repeatedly held that
proof of physical possession ... is sufficient on its own to prove
a plaintiffs standing." Melina, 827 F.3d at 223. Thus, a plaintiff
may establish standing as the "holder" of the note by attaching
the note with allonge to the complaint, and as the "assignee" of
24
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the note by producing a written assignment. Id. at 222-23 (citing
Onewes~ F.S.B. v. Goddard, 131 A.D.3d 1028, 1029 (2d Dep't
2015)); see also Avail Holding LLC v. Ramos, 820 F. App'x 83, 85
(2d Cir. 2020) (summary order) (same); Golden Bridge UC v.
DGS18 Realty LLC, No. 22-CV-5857 (NGG) 	(CLP), 2025 WL
921098, at *8 (E.D.N.Y. Mar. 27, 2025) (same).
Plaintiff has produced the Note, the Allonge, the Mortgage, and
the Assignment. (Note; Allonge; Mortgage; Assignment.) By at-
taching 	these 	documents 	to 	the 	Complaint, 	Plaintiff 	has
demonstrated its possession of the Note and the Assignment, and
thus, its standing to foreclose as both the holder and assignee of
the Note. (Compl. (attaching these documents).)
In addition, Defendants fail to raise a triable issue of fact. The
undisputed facts establish Plaintiff's physical possession of both
the Note and the Assignment, and Defendants do not dispute that
at the time Plaintiff commenced this action on February 13,
2023, it was the owner and holder of, and in physical possession
of, these records. (Esteve Deel. ff'! 7, 10, 16; Defs.' 56.1 '!ff 4 (stat-
ing 	that 	Defendants 	"are 	without 	sufficient 	information 	to
respond to [the] statement" that Freddie Mac assigned the Loan
and Mortgage to Plaintiff), 6 (stating that Defendants "are with-
out sufficient information to respond to [the] statement" that
Plaintiff is the owner and holder of the Note and other Loan doc-
uments).) 	See 	Green 	Mountain, 	2025 	WL 	2494292, 	at *8;
Petriello, 2025 WL 1726320, at *11 n.12 (finding affirmative de-
fense challenging plaintiff's standing meritless because it was
''belied by the text of the Mortgage and Assignment" that the
plaintiff submitted in support of its motion).
Given Plaintiff has established its standing and Defendants fail to
raise a triable issue of material fact, the court grants summary
judgment to Plaintiff on Defendants' ninth affirmative defense.
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2. 	Statute of Limitations
Plaintiff moves for summary judgment on Defendants' second af-
firmative defense asserting that this case is barred by the statute
of limitations. (Pl.'s Mot. at 9; Defs.' Answer 'I 43.)
Under New York law, the "statute of limitations for a foreclosure
claim is six years." Lubonty v. U.S. Bank Nat'l Ass'n, 34 N.Y.3d
250, 261 (N.Y. 2019) (citing N.Y. C.P.L.R. § 213(4)); Fernandez,
712 F. Supp. 3d at 335 ("In New York, an action to foreclose on
a mortgage is subject to a six-year statute of limitations.") (quot-
ing 53rd St., LLC v. U.S. Bank Nat'l Ass'n, 8 F.4th 74, 78 (2d Cir.
2021)). As relevant here, the six-year statute of limitations ''be-
gins to run when ... the entire mortgage amount [is] made
immediately due." Article 13 LLCv. Ponce De Leon Fed. Bank, 132
F.4th 586, 	589 	(2d Cir. 	2025) 	(first quoting N.Y. 	C.P.L.R.
§ 213(4); and then citing 53rd St., LLC, 8 F.4th at 78). That is,
"once a mortgage debt is accelerated, the entire amount is due
and the [s]tatute of [l]imitations begins to run." 53rd St., LLC, 8
F.4th at 78 (quoting Ditmid Holdings, LLC v. JPMorgan Chase
Bank, N.A., 180 A.D.3d 1002, 1003 (2d Dep't 2020)); see also Lu-
bonty, 34 N.Y.3d at 261 ("Here, the limitations period began to
run on June 11, 2007, upon AHMA's acceleration of plaintiff's
mortgage.").
Plaintiff accelerated the Loan on January 11, 2023. (Defs.' 56.1
'I 11; Esteve Deel. 'I 16; see also Acceleration Letter.) The statute
oflimitations began to run on that date. Thus, the six-year statute
of limitations has not yet lapsed. Therefore, the court grants sum-
mary judgment to Plaintiff on Defendants' second affirmative
defense.
3. 	Section 8.01 (s)
Plaintiff moves for summary judgment on Defendants' eighth af-
firmative defense based on Plaintiff's purported failure to meet a
26
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"condition precedent to commencing [this] foreclose action" un-
der Section 8.0l(s) of the Mortgage. 	(Pl.'s Mot. at 11; Defs.'
Answer 'l'I 49-51.) Plaintiff argues that the section does not ap-
ply. 	(Pl.'s 	Mot. 	at 11.) 	Defendants 	disagree, 	asserting 	that
Section 8.01 (s)'s notice and cure requirements govern because
Plaintiff has alleged that Borrower violated Section 6.08 (b) of the
Loan Agreement. (Defs.' Opp. at 7 (citing Compl.).)
In reply, Plaintiff argues that Defendants' continued "reliance on
Section 8.01 (s) as creating a condition precedent which Plaintiff
was required to first follow is misplaced" for three independent
reasons: (1) the Loan Agreement is "clear" that Section 8.01 (s)'s
"notice and cure period requirement ... only applies if Borrower
defaults on any of its obligations other than those enumerated in
Sections 8.0l(a)-(r)," which it did not; (2) even if Borrower's de-
faults were not covered by Sections 8.0l(a)-(r), Plaintiff was still
not bound by Section 8.0l(s)'s notice and cure requirements
"given the harm or threat posed to [Plaintiff], the Loan[,] and
the [Property's] tenants as a direct result of Borrower and Guar-
antor's defaults," which triggers the section's exclusion provision;
and, 	in 	the 	alternative, 	(3) Plaintiff 	complied 	with 	Sec-
tion 8.0l(s)'s requirements by sending Defendants the Default
Letter on November 29, 2022 and not accelerating the Loan until
January 11, 2023. (Pl.'s Reply at 6-7 (first citing Loan Agreement
§ 8.0l(s); and then citing Default Letter; and then citing Acceler-
ation Letter).)
Section 8.01 (s) authorizes Plaintiff to commence foreclosure pro-
ceedings if: (1) "Borrower fails to perform any of its obligations
under this Loan Agreement (other than those Events of Default
specified in Sections 8.01 (a) through (r) or included on any ex-
hibit, schedule, or rider attached to this Loan Agreement)"; and
(2) "that failure continues for a period of 30 days after Notice of
the 	failure 	by 	[Plaintiff] 	to 	Borrower." 	(Loan 	Agreement
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§ 8.0l(s).) Section 8.0l(s) also provides an exception to these
requirements, stating that:
(Id.)
No Notice or cure periods will apply in the case of any failure
which could, in [Plaintiff]'s judgment, absent immediate ex-
ercise by [Plaintiff] of a right or remedy under this Loan
Agreement, result in harm to [Plaintiff], danger to tenants or
third parties, or impairment of the Note, the Security Instru-
ment, this Loan Agreement, or any other security given
under any other Loan Document.
The court concludes that Borrower's defaults qualify as Events of
Default under Section 8.0l(a), meaning that the notice and cure
requirements in Section 8.01 (s) do not apply.
According to Section 8.0l(s)'s clear terms, for Defendants to pre-
vail on their eighth affirmative defense, Borrower's default must
neither 	(1) qualify 	as 	an 	"Event 	of 	Default'' 	under 	Sec-
tions 8.01 (a)-(r) of the Loan Agreement, nor (2) in Plaintiff's
judgment, "result in" "harm to [Plaintiff]," "danger to tenants or
third parties," or "impairment'' of the Note, Mortgage, or "any
other security given under any other Loan Document." (Loan
Agreement§ 8.0l(s).) In tum, Section 8.0l(a) defines an Event
of Default as when "Borrower fails to pay or deposit when due
any amount required by the Note, this Loan Agreement[,] or any
other Loan Document." (Loan Agreement§ 8.0l(a).) Section 3
of the Note, states that "Borrower will make a payment every
month on the first day of each month ... until Borrower has paid
the entire Principal Amount." (Note§ 3(a).) Section 6.08 of the
Loan Agreement states that "Borrower will pay'' "all Taxes when
due" and the "expenses of operating, managing, maintaining and
repairing" the Property, "including utilities." (Loan Agreement
§ 6.0S(a), (b).)
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Borrower has failed to make monthly Loan payments since Au-
gust 1, 2022. (Defs.' 56.1 '!'I 7-13; Esteve Deel. '!'I 11-13, 15-18;
see also Payment History; Default Letter at ECF pp.3-4; Accelera-
tion Letter at ECF pp.3-4.) These missed payments amount to an
Event of Default as defined in Section 8.0l(a) because they are
"Borrower['s] fail[ures] to pay ... when due any amount re-
quired by [Section 3 of] the Note." (Loan Agreement§ 8.0l(a).)
Borrower has also failed to pay the Property's utilities bill and
property taxes. (Defs.' 56.1 'I 9; Esteve Deel. '!'I 13-14.) These
missed payments similarly amount to an Event of Default as de-
fined in Section 8.01 (a) because they are "Borrower['s] fail[ures]
to pay ... when due any amount required by ... [Section 6.08
of] this Loan Agreement." (Loan Agreement§ 8.0l(a).)
As Events of Default under Section 8.0l(a), Borrower's defaults
are excluded from Section 8.01 (s)'s notice and cure require-
ments. (Loan Agreement§ 8.0l(s) (excluding Events of Default
defined in Sections 8.0l(a)-(r)).) Therefore, Defendants' eighth
affirmative defense fails. Consequently, the court grants Plain-
tiffs motion for summary judgment on this defense.
4. 	Section 1303
As already explained, Plaintiff moves for summary judgment on
Defendants' tenth affirmative defense based on its lack of com-
pliance with Section 1303, and Defendants oppose that motion.
Supra Section III.A.2. The court denies this aspect of Plaintiffs
motion because what Defendants may have labeled as an "affirm-
ative defense," (Answer'[ 53), is not "an affirmative defense-on
which the defendant bears the burden of proof," Giammettei, 34
F.3d at 54 (emphasis added), but a "mandatory condition or con-
dition precedent" to the foreclosing party's case on which the
''foreclosing party has the burden of [proof]," Silver, 73 A.D.3d
at 167 (emphasis added). Nevertheless, Plaintiff submits several
arguments for why the court should strike Defendants' tenth af-
firmative defense. None is convincing.
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First, Plaintiff argues that "before inspecting the [December 2023
Notice]" for compliance with Section 1303, the court "must first''
determine whether Defendants have "standing" to bring a de-
fense based on this section. (Pl.'s Mot. at 13.) But this argument
confuses the parties' burdens and asks the wrong question. The
question is not, as Plaintiff would have it, whether Defendants
"have standing'' to assert this "affirmative defense." (Id.) It is in-
stead whether Plaintiff, in moving for summary judgment, has
met its burden to establish a prima fade case, which includes the
burden to establish compliance with Section 1303. Silver, 73
A.D.3d at 169.
This first argument is based on Plaintiff's fundamental misunder-
standing about which party bears the burden of proof to establish
compliance with Section 1303's notice requirements, and the
burden of production on this element on a motion for summary
judgment. The law is clear that Plaintiff-not Defendants-bears
the burden of proof as to establishing its foreclosure claim as a
matter of law. Donovan, 856 F. App'x at 336-37 ("If the plaintiff
establishes a prima fade case, 'the burden then shifts to the de-
fendant .... "') (emphases added) (quoting Capstone Bus. Credit,
70 A.D.3d at 883). ''The law is also clear that, on a motion for
summary judgment, the burden of production ... attaches to the
party who would bear the burden of proof on that element at
trial." In re Payment Card Interchange Fee & Merch. Disc. Antitrust
Litig., 	No. 05-MD-1720 	(MKB), 	2024 	WL 	1142860, 	at *9
(E.D.N.Y. Mar. 15, 2024) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) ("Rule 56(c) mandates the entry of summary
judgment ... against a party who fails to make a showing suffi-
cient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial.")). And, as to which party bears the burden of prov-
ing compliance with RPAPL's notice requirements, "New York
authority is clear that notice is an indispensable element of a
30
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prima fade case." 17 Plenitude Cap. LLC v. Utica Ventures, LLC,
No. 18-CV-2702 	(MKB) 	(RER), 	2019 	WL 	4014840, 	at *4
(E.D.N.Y. June 11, 2019) (first citing Silver, 73 A.D.3d at 165,
168; and then citing U.S. Bank Nat'l Ass'n v. Sims, 162 A.D.3d
825, 826 (2d Dep't 2018)), report and recommendation adopted,
2019 WL 3543610 (E.D.N.Y. Aug. 5, 2019); see also United States
v. 	Starr, 	No. 16-CV-1431 	(NSR), 	2017 	WL 	4402573, 	at *4
(S.D.N.Y. Sept. 29, 2017) ("A foreclosing mortgagee that does
not clearly establish compliance with RPAPL's notice require-
ments, fails to meet its prima fade burden of establishing its
entitlement to judgment as a matter of law.").
In 2010, the Second Department was "asked to determine an is-
sue of first impression at the appellate level" in New York State:
''whether the failure to comply with [RPAPL's] notice require-
ments ... must be raised as an affirmative defense or whether it
17 State cases finding that a foreclosing party failed to establish its prima
fade case because the Section 1303 notice did not comply with the statute's
content, form, and delivery requirements abound. See, e.g., Nichol.son, 210
AD .3d at 761; 22-33 Brookhaven, 219 A.D .3d at 663-65; MI'GLQ Investors,
L.P. v. Assim, 209 A.D.3d 1006, 1008 (2d Dep't 2022) (affirming denial of
plaintiffs summary judgment motion because the "affidavit of service did
not indicate that the notice served upon the defendant complied with all
of the requirements of RPAPL 1303, including the proper typeface"). Ap-
plying these state standards, courts in this circuit have found the same,
even when the plaintiffs motion was unopposed. See, e.g., Green Mountain
Holdings (Cayman) Ltd. v. 501 Lafayette Ave LLC, No. 21-CV-5844 (MKB)
(TAM), 2023 WL 6594003, at *3 & n.5 (E.D.N.Y. Aug. 18, 2023) (observ-
ing that a court "must determine" whether a plaintiff has complied with
RPAPL's notice requirements, even on an unopposed motion for summary
judgment because "failure to comply with [these requirements] is a suffi-
cient basis to deny foreclosure relief'), report and recommendation adopted
sub nom. Green Mountain Holdings (Cayman) LTD v. 501 Lafayette Ave LLC,
2023 WL 5993166 (E.D.N.Y. Sept. 15, 2023); U.S. Bank Nat'l Ass'n ex rel.
RMAC Tr., Series 2016-CTT v. Christian, No. 19-CV-0427 (CBA) (RML),
2020 WL 3918566, at *3 (E.D.N.Y. Feb. 25, 2020) (same but on the plain-
tiffs unopposed motion for default judgment), report and recommendation
adopted, 2020 WL 3893015 (E.D.N.Y. July 10, 2020).
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can be raised at any time during an action." Silver, 73 A.D.3d
at 163. The Appellate 	Division considered RPAPL's purpose,
noted the statute's use of the word "shall," and surveyed the cases
examining Section 1303's notice requirements-finding that they
"all dismissed the complaint where the plaintiff totally failed to
show compliance with [RPAPL]'s notice requirements, regardless
of when the defendant raised the issue." Id. at 169 (emphases
added). The court then held-in no uncertain terms-that com-
pliance with Section 1303's notice requirements "is a condition
precedent which is the plaintiffs burden to meet, and which does
not have to be raised as an affirmative defense in the answer," but
"can be raised at any time." Id. at 163, 169 (emphases added).
Consequently, contrary to Plaintiff's assertion, it is not Defend-
ants' burden to demonstrate that Plaintiff failed to comply with
Section 1303 or to raise a triable issue of material fact as to Plain-
tiff's compliance. Instead, as the movant on its RPAPL claim and
the foreclosing party, Plaintiff bears the burden to demonstrate
compliance with Section 1303, and to do so as part of its prima
fade case.
Second, as to Plaintiff's standing argument, New York courts
have already considered and rejected the argument Plaintiff ad-
vances now, stating that it is "unsupported by case law or the
plain language of the statute." 650 Brooklyn LLC v. Hunte, 47
Misc. 3d 885, 896 (N.Y. Sup., Kings Cnty. 2015). As the New
York Supreme Court, Kings County has explained:
Id.
The failure to enforce [Section 1303] as written, consistent
with prior determinations that compliance is a condition
precedent to maintenance of the foreclosure action, would
defeat the purpose of the legislation, to protect tenants who
might not be otherwise aware of their rights or even of the
pendency of the [foreclosure] action.
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Plaintiffs reliance on Ekelmann Group, LLC v. Stuart, 108 A.D.3d
1098 (4th Dep't 2013) is unconvincing. (Pls.' Mot. at 13; Pl.'s Re-
ply at 2.) In Ekelmann, the New York Appellate Division, Fourth
Department relied on the Second Department's opinion in NYCTL
1996-1 Tr. v. King, 13 A.D.3d 429 (2d Dep't 2004), to conclude
that "defendants do not have standing to assert the defense that
plaintiff failed to give proper [Notice to Tenants] under RPAPL
1303." Ekelmann, 108 A.D.3d at 1100 (citing King, 13 A.D.3d
at 430). However, King-which was decided two years before
Section 1303's enactment-actually held that the "defense of im-
proper service of process in a foreclosure action is personal in
nature and may only be raised by the party improperly served." 18
King, 13 A.D.3d at 430 (emphasis added) (citing Home Sav. of
Am. v. Gkanios, 233 A.D.2d 422, 423 (2d Dep't 1996) (conclud-
ing that a defendant "lacks standing to challenge whether [a
separate defendant] was properly served with process")). Thus,
the case on which the decision in Ekelmann relies (King), stands
for the rule that the defense of improper service of process-Le.,
challenging the service of the summons and complaint-is per-
sonal, and says nothing about the defense of improper delivery
of a Section 1303 notice. Nor could it. 19
Try as it might, Plaintiff cannot rewrite Section 1303 to require
"service" of a Notice to Tenants. The statute expressly states that
the Notice to Tenants "shall be delivered within ten days of the
service of the summons and complaint." RPAPL § 1303(4) (em-
phases added). Pursuant to this directive, Plaintiff was required
to provide Defendants with proper "service of the summons and
18 "RPAPL 1303 was enacted in July 2006 as part of the Home Equity Theft
Prevention Act (hereinafter HETPA) ." Ed. of Directors of House Beautiful at
Woodbury Homeowners Ass'n, Inc. v. Godt, 96 A.D.3d 983, 984 (2d Dep't
2012); see also Silver, 73 A.D.3d at 165 ("HETPA became effective on Feb-
ruary 1, 2007.").
19 King (decided in 2004) predates the enactment of Section 1303 in 2006.
33
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complaint," and then to provide the Property's tenants with the
Notice to Tenants "within 10 days of [that] service." Id. Plaintiff
failed to do the latter.
Third, Plaintiffs mootness argument is not supported by the evi-
dence. According to Plaintiff, Defendants' "affirmative defense"
based on Section 1303 is "moot" because Defendants were still
in default in this action when the December 2023 Notice was de-
livered on December 5, 2023. (Pl.'s Mot. at 14; Pl.'s Reply at 2.)
But this argument presupposes that the December 2023 Notice
complied with Section 1303's requirements, which it does not.
Supra Section III.A.2 (explaining that the December 2023 Notice
does not comply with Section 1303's timing and delivery require-
ments). Thus, insofar as Plaintiff relies on the December 2023
Notice, this argument fails.
Nor is the court persuaded by the merits of this argument. Even
if Plaintiff were correct that the December 2023 Notice complied
with Section 1303, New York authority is clear that a Section
1303 defense may be raised "at any time." Silver, 73 A.D.3d
at 163; see also E. Sav. Bank, FSB v. Tromba, 148 A.D.3d 675, 676
(2d Dep't 2017) ("A defendant mortgagor can raise the mortga-
gee's failure to comply with the statute at any time."). Plaintiff
has yet to deliver notice to the Property's tenants complying with
Section 1303. Thus, Defendants are well within their right to
bring this defense now. 20 See JPMorgan Chase Bank, N.A. v.
Akanda, 177 A.D.3d 718, 720 (2d Dep't 2019) (concluding that
defendants "properly raised" the issue of plaintiffs compliance
20 Plaintiffs reliance on Deutsche Bank National Trust Company vs. O'Con-
nor, 223 A.D.3d 872 (2d Dep't 2024) is inapposite because in that case, the
defendant failed to vacate her default and thus was "precluded from as-
serting defenses based on lack of standing and failure to comply with
RPAPL 1303." 223 A.D.3d at 877. In contrast, Defendants have raised their
Section 1303 "defense" only after the court vacated Guarantor's default
and the default judgment against Borrower. (See 4/14/2024 M&O at 1 (va-
cating defaults); Defs.' Answer '153 (asserting Section 1303 defense).)
34
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with RPAPL for the first time in their opposition to plaintiffs mo-
tion for summary judgment); U.S. Bank Nat'l Ass'n v. Powell, 187
A.D.3d 1238, 1240 (2d Dep't 2020) (same).
As already explained, New York courts-and indeed this court,
(4/12/2024 M&O at 7)-have found that a plaintiffs compliance
with RPAPL's notice requirements is a "condition precedent" to
the commencement of a foreclosure action and that the plaintiff
has the burden of establishing "strict compliance" with these re-
quirements. Supra Section III.A.2. New York authority is clear
that compliance with Section 1303 "is a condition precedent
which is the plaintiffs burden to meet, and which does not have
to be raised as an affirmative defense in the answer." Silver, 73
A.D.3d at 163, 169. New York authority is also clear that if the
plaintiff "fails to demonstrate such compliance," the "foreclosure
action will be dismissed." Id. at 166, 169; see also Bank of New
York Mellon v. McCaffrey, 207 A.D.3d 614, 617 (2d Dep't 2022)
(collecting cases). Under these standards, Plaintiff has the bur-
den to demonstrate compliance with Section 1303 and the
burden would only "shift" to Defendants if Plaintiff established
this statutory requirement of its prima fade case. Plaintiff failed
to do so. Therefore, the court denies Plaintiffs motion for sum-
mary judgment on its RPAPL claim and on Defendants' tenth
affirmative defense.
5. 	Remaining Defenses
The court concludes that Defendants' remaining affirmative de-
fenses are wholly conclusory and lack evidentiary support. 21
First, Defendants' unsubstantiated allegation that they were not
properly served with the summons and complaint runs contrary
21 The remaining defenses are personal jurisdiction, statute of frauds,
waiver, estoppel, laches, and "res judicata and/or collateral estoppel"-
respectively, Defendants' first, third, fourth, fifth, sixth, and seventh affirm-
ative defenses. (Defs.' Answer '1'142, 44-48.)
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to statute. See Fed. R. Civ. P. 4(h); N.Y. C.P.L.R. § 311-a(a); N.Y.
Ltd. Liab. Co. § 303 (a) (1); see also Gov't Emps. Ins. Co. v. Onyema,
790 F. Supp. 3d 147, 161 (E.D.N.Y. 2025) (concluding defendant
New York corporations were "properly served" because plaintiff
"deliver[ed] copies of the summons and [c]omplaint to the New
York Secretary of State"). Moreover, their extensive participation
in this case on the merits without asserting a personal jurisdiction
defense arising from improper service-including in opposition
to Plaintiffs motion for summary judgment on this very issue-
amounts to forfeiture. See Tobin v. Gluck, 11 F. Supp. 3d 280,
304-05 (E.D.N.Y. 2014) (collecting cases); O'Connor, 223 A.D.3d
at 875 (same); see also Datskow v. Teledyne, Inc. Continental Prod-
ucts Div., 899 F.2d 1298, 1300-03 (2d Cir. 1990) (holding that a
defendant who raised an improper service of process defense in
his answer forfeited the defense after participating in a schedul-
ing conference 	with 	a magistrate judge, 	during which 	the
defendant did not mention the personal jurisdiction defense);
Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61-62 (2d Cir. 1999)
(holding that a defendant who raised a personal jurisdiction de-
fense in its answer forfeited the defense by failing to raise it again
for four years, during which time the defendant had participated
in considerable pretrial activity). Thus, the court grants Plaintiffs
motion for summary judgment on Defendants' first affirmative
defense.
Second, the record shows no indication of waiver or estoppel, nor
support for any application of the statute of frauds or the doc-
trines of res judicata and collateral estoppel. As Defendants have
proffered no evidence (or legal arguments) in support of these
defenses, the court grants Plaintiffs motion for summary judg-
ment on the third, fourth, fifth, sixth, and seventh affirmative
defenses. Green Mountain, 2025 WL 2494292, at *13; Greenlight
Cap., Inc. v. Fishback, No. 24-CV-2299 (LTS), 2025 WL 965597,
at *6 (S.D.N.Y. Mar. 31, 2025) (finding that affirmative defenses
pleaded in the answer including "estoppel, ... waiver, ... and an
36
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oral forbearance 	agreement" for which the defendant "prof-
fer [ed] 	no 	evidence 	or 	legal 	arguments 	in 	support'' 	were
insufficient to defeat summary judgment in a New York foreclo-
sure action); Gray, 2025 WL 857979, at *1, *4 n.2 (granting the
plaintiffs motion for summary judgment on each affirmative de-
fense 	that 	the 	defendant 	"failed 	to 	respond 	[to] 	in 	any
substantive way''); Regalado, 751 F. Supp. 3d at 126-27, 131-32
(granting the plaintiffs motion for summary judgment on each
affirmative defense because the defendant "failed to oppose the
motion, or otherwise support the defenses ... with admissible
evidence"); Wilmington PT Corp. v. Danialian, No. 19-CV-1972
(GRB) 	(JMW), 	2023 	WL 	2632499, 	at *1, *3 n.3 	(E.D.N.Y.
Mar. 24, 2023) 	(granting the plaintiffs motion for summary
judgment on each affirmative defense because the defendants
neither "addressed [n] or made any arguments in opposition").
***
For the above reasons, the court grants Plaintiff's motion for sum-
mary judgment on each of the affirmative defenses pleaded in
the Answer except for the tenth affirmative defense due to Plain-
tiff's failure to comply with Section 1303.
37
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s/Nicholas G. Garaufis
IV. CONCLUSION
For the foregoing reasons, Plaintiff's motion for summary judg-
ment
is
GRANTED IN
PART
and
DENIED IN PART.
Given that
Plaintiff has failed to comply with the statutory notice require-
ments set forth in
RPAPL
§ 1303, the court
DENIES
summary
judgment to Plaintiff on its
RPAPL
claim. The court
GRANTS
summary judgment to Plaintiff on the first nine affirmative de-
fenses 	pleaded 	in 	the 	Answer. 	The 	case 	may 	proceed 	on
Defendants' tenth affirmative defense.
SO ORDERED.
Dated: 	Brooklyn, New York
March
J.
!_,
2026
38
NICHOIAS
G.
GARAUFIS
(' 	-
United States District Judge
Case 1:23-cv-01270-NGG-RML Document 77 Filed 03/11/26 Page 38 of 38 PageID #:
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