Wilmington Sav. Fund Socy., FSB v. Goldstein

Wilmington Sav. Fund Socy., FSB v Goldstein

2026 NY Slip Op 30952(U)

March 10, 2026

Supreme Court, New York County

Docket Number: Index No. 850241/2024

Judge: Francis A. Kahn III

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.8502412024.NEW_YORK.001.LBLX036_TO.html[03/20/2026 3:46:03 PM]

!FILED: NEW YORK COUNTY CLERK 03/12/2026 11:49 AM! INDEX NO. 850241/2024

NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/12/2026

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. FRANCIS A. KAHN, Ill PART 32

Justice

-------------------------------------------------------------------------X INDEX NO. 850241 /2024

WILMINGTON SAVINGS FUND SOCIETY, FSB , NOT IN

ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER MOTION DATE

TRUSTEE OF CSMC 2022-JR1 TRUST,

MOTION SEQ. NO. -----=-00-=--1.:____

Plaintiff,

- V -

MITCHELL GOLDSTEIN, BOARD OF MANAGERS OF THE

RUPPERT YORKVILLE TOWERS CONDOMINIUM, NEW

YORK CITY PARKING VIOLATION BUREAU , NEW YORK

DECISION + ORDER ON

CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK MOTION

CITY TRANSIT ADJUDICATION BUREAU, JOHN DOE #1

THROUGH JOHN DOE #12

Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 50 , 51 , 52 , 53 , 54,

55, 56, 57, 58, 59, 60, 61, 62, 63, 64 , 65 , 66, 67, 68, 69, 70 , 71, 72, 74, 75, 76

were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, the motion and cross-motion are determined as follows:

This is an action to foreclose on a mortgage encumbering real property located at 1623 Third

Avenue Unit 19D, New York, New York. The mortgage, dated June 1, 2006, was given by Defendant

Mitchell H. Goldstein (" Ross") to non-party Bank of America, NA ("BOA"). The mortgage secures a

loan with an original principal amount of $355,000.00 which is evidenced by a note of the same date as

the mortgage. Plaintiff commenced this action, and pied Defendant defaulted in repayment of the

indebtedness beginning on or about April 25, 2023. Defendants Goldstein answered and pied fourteen

affirmative defenses, including lack of standing. Now, Plaintiff moves for summary judgment against

the appearing Defendant, to strike his answers and affirmative defenses, for a default judgment against

the non-appearing Defendants, for an order of reference and to amend the caption. Defendant opposes

the motion.

In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to

judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default

in repayment (see US. Bank, NA. v James, 180 AD3d 594 [Pt Dept 2020]; Bank ofNYv Knowles, 151

AD3d 596 [1 st Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 AD3d 577 [1 st Dept 201 O]).

Also, based on the affirmative defenses pied, Plaintiff was required to demonstrate, prima facie, its

standing (see eg Wells Fargo Bank, NA . v Tricario, 180 AD3d 848 [2 nd Dept 2020]). Proof supporting

a prima facie case on a motion for summary judgment a cause of action for foreclosure must be in

admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions IIL LLC v Litkowski, 172 AD3d 780

[Pt Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts,

850241/2024 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 1 of 4

BUT SOLELY AS OWNER TRUSTEE OF CSMC 2022-JR1 TRUST vs. GOLDSTEIN, MITCHELL H.

ET AL

Motion No. 001

[* 1] 1 of 4

!FILED: NEW YORK COUNTY CLERK 03/12/2026 11:49 AMI INDEX NO. 850241/2024

NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/12/2026

documents in admissible form and/or persons with knowledge derived from produced admissible records

(see eg US. Bank NA. v Moulton, 179 AD3d 734, 738 [2d Dept 2020]). No specific set of business

records must be proffered, as long as the admissibility requirements of CPLR 4518[a] are fulfilled and

the records evince the facts for which they are relied upon (see eg Citigroup v Kopelowitz, 147 AD3d

1014, 1015 [2dDept2017]).

Plaintiff's motion was supported by an affidavit from Cynthia May ("May"), an officer of Select

Portfolio Servicing, Inc. ("SPS"), servicing agent and attorney-in-fact for Plaintiff. May avers that the

affidavit is based on personal review of SPS 's business records. May 's affidavit laid a proper

foundation for the admission SPS 's records into evidence under CPLR §4518 by sufficiently showing

that the records "reflect[ed] a routine, regularly conducted business activity, and that it be needed and

relied on in the performance of functions of the business", "that the record[ s] [were] made pursuant to

established procedures for the routine, habitual , systematic making of such a record" and "that the

record[ s] [were] made at or about the time of the event being recorded" (Bank of NY Mellon v Gordon,

171 AD3d 197,204[2dDept2019];seealsoBankofAmvBrannon, 156AD3d 1 [lstDept2017]). The

records of other entities were also admissible since May established that those records were received

from the makers and incorporated into the records SPS kept and that it routinely relied upon such

documents in its business (see eg US. Bank NA . v Kropp-Somoza, 191 AD3d 918 [2d Dept 2021]).

Further, the records referenced by May were annexed to the moving papers (cf Deutsche Bank Natl.

Trust Co. v Kirschenbaum , 187 AD3d 569 [l st Dept 2020]). SPS 's authority to act on Plaintiff's behalf

was established with submission of a limited power of attorney, dated October 16, 2024 (see US. Bank

NA . v Tesoriero, 204 AD3d 1066 [2d Dept 2022]; Deutsche Bank Natl. Trust Co. v Silverman, 178

AD3d 898 [2d Dept 2019]; US Bank NA. v Louis, 148 AD3d 758 [2d Dept 2017]).

As to the note and mortgage, these documents were referenced by May and annexed to her

affidavit (cf 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Haus. Dev. Fund Corp., 218 AD3d

417 [1 st Dept 2023]). As such, proof of the loan documents was established in the first instance. As to

Defendants' default, it "is established by (1) an admission made in response to a notice to admit, (2) an

affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible

form" (Deutsche Bank Natl. Trust Co. v McGann, 183 AD3d 700, 702 [2d Dept 2020]). Where, as here,

proof of a default is based on records, the documents evidencing the default (ie. an account ledger or

similar), must be proffered (see eg US Bank v Rowe, 194 AD3d 978 [2d Dept 2021]) and annexed to the

affiants' affidavit (see 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Haus. Dev. Fund Corp.,

supra; Nationstar Mortgage LLC v Konitz I, LLC, 208 AD3d 500 [2d Dept 2022]).

In this case, the record proffered by Plaintiff was a "Financial Breakdown Summary" created

October 1, 2025. As presented, this record is an inadmissible summary rather than the account records

upon which the information was gleaned (see 76-82 St. Marks, LLC v Gluck, 147 AD3d 1011 [2d Dept

2017]; National States Elec. Corp. v LFO Constr. Corp., 203 AD2d 49 [1 st Dept 1994]). The purported

default notices are, in and of themselves, insufficient to establish a default in repayment (see Bank of

NY Mellon v Mannino, 209 AD3d 707 [2d Dept 2022]). Accordingly, Plaintiff failed to demonstrate

primafacie Defendant's default in repayment.

As to standing in a foreclosure action, it is established in one of three ways: [ 1] direct privity

between mortgagor and mortgagee, [2] physical possession of the note prior to commencement of the

action that contains an indorsement in blank or bears a special indorsement payable to the order of the

plaintiff either on its face or by allonge, and [3] assignment of the note to Plaintiff prior to

850241/2024 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 2 of 4

BUT SOLELY AS OWNER TRUSTEE OF CSMC 2022-JR1 TRUST vs. GOLDSTEIN, MITCHELL H.

ET AL

Motion No. 001

2 of 4

[* 2]

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NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/12/2026

commencement of the action (see eg Wells Fargo Bank, NA. v Tricario , 180 AD3d 848 [2d Dept 2020];

Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375 [3d Dept 2015]). "The attachment of a properly

endorsed note to the complaint may be sufficient to establish, prima facie, that the plaintiff is the holder

of the note at the time of commencement" (Deutsche Bank Natl. Trust Co. v Webster, 142 AD3d 636,

63 8 [2d Dept 2016]; cf JP Morgan Chase Bank, NA . v Grennan, supra). Here, Plaintiff annexed a copy

of the note, endorsed in blank on its face, to the complaint which is sufficient to demonstrate that

Plaintiff was the holder of the note when the action was commenced (see Ocwen Loan Servicing LLC v

Siame, 185 AD3d 408 [l51 Dept 2020]; BankofNYv Knowles, supra at 597).

All the affirmative defenses are entirely conclusory and unsupported by any facts in the answer

or by the papers submitted in opposition. As such, these affirmative defenses are nothing more than an

unsubstantiated legal conclusion which is insufficiently pied as a matter of law (see Board of Mgrs. of

Ruppert Yorkville Towers Condominium v Hayden, 169 AD3d 569 [l51 Dept 2019]; see also Bosco

Credit V Trust Series 2012-1 v. Johnson, 177 AD3d 561 [1 st Dept 2020]; 170 W Vil. Assoc. v G & E

Realty, Inc., 56 AD3d 372 [1st Dept 2008]; see also Becher v Feller, 64 AD3d 672 [2d Dept 2009] ;

Cohen Fashion Opt., Inc. v V & M Opt. , Inc., 51 AD3d 619 [2d Dept 2008]). To the extent that no

specific legal argument was proffered in support of a particular affirmative defense or claim, they were

abandoned (see US Bank NA. v Gonzalez, 172 AD3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v

Bellafiore, 94 AD3d 1044 [2d Dept 2012]; Wells Fargo Bank Minnesota, NA v Perez, 41 AD3d 590 [2d

Dept 2007]).

The branch of Plaintiffs motion for a default judgment against the non-appearing parties is

granted without opposition (see CPLR §3215 ; SRMOF II 2012-1 Trust v Tella, 139 AD3d 599, 600 [l51

Dept 2016]).

The branch of Plaintiffs motion to amend the caption is granted without opposition (see

generally CPLR §3025; JP Morgan Chase Bank, NA . v Laszio, 169 AD3d 885 , 887 [2d Dept 2019]).

Accordingly, it is

ORDERED that Plaintiffs motion for summary judgment and an order of reference is denied;

and it is

ORDERED that Plaintiffs motion for a default judgment against the non-appearing Defendants

is granted; and it is

ORDERED that the affirmative defenses pied by the appearing Defendant are dismissed; and it is

further

ORDERED that "Doe" Defendants are stricken as the New York County Clerk will not accept a

judgment for filing with a "Doe" or "Name Refused" defendant in the caption; and it is further

ORDERED that the caption is amended to read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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U.S. BANK TRUST NATIONAL ASSOCIATION,

85024112024 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 3 of 4

BUT SOLELY AS OWNER TRUSTEE OF CSMC 2022-JR1 TRUST vs. GOLDSTEIN, MITCHELL H.

ET AL

Motion No. 001

3 of 4

[* 3]

!FILED: NEW YORK COUNTY CLERK 03/12/2026 11:49 AM! INDEX NO. 850241/2024

NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 03/12/2026

NOT IN ITS INDIVIDUAL CAPACITY BUT

SOLELY AS TRUSTEE, ON BEHALF OF AND FOR

THE BENEFIT OF BP-JR I LOAN TRUST,

Plaintiff,

-against-

MITCHELL H. GOLDSTEIN A/KIA MITCHELL

GOLDSTEIN; BOARD OF MANAGERS OF THE

RUPPERT YORKVILLE TOWERS

CONDOMINIUM; NEW YORK CITY PARKING

VIOLATIONS BUREAU; NEW YORK CITY

ENVIRONMENTAL CONTROL BOARD; NEW

YORK CITY TRANSIT ADJUDICATION BUREAU;

Defendants.

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and it is

ORDERED that this matter is set down for a status conference on May 20, 2026 @ 11 :20 am

via Microsoft Teams.

3/10/2026

DATE FRANCIS KAHN, Ill, A.J.S.C.

CHECK ONE: CASE DISPOSED NON-ilrJ~ofi~NC IS A. KAHN Ill

GRANTED □ DENIED GRANTED IN PART □ OTHER J.S.C.

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

850241/2024 WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY Page 4 of 4

BUT SOLELY AS OWNER TRUSTEE OF CSMC 2022-JR1 TRUST vs. GOLDSTEIN, MITCHELL H.

ETAL

Motion No. 001

4 of 4

[* 4]