Wilmington Sav. Fund Soc'y FSB v. Thukral

• Court: New York Supreme Court
• Writing for the Court: HON. FRANCIS A. KAHN, III J.S.C.
• Citation: Wilmington Sav. Fund Soc'y FSB v. Thukral, 2025 NY Slip Op 34029(U), Index No. 850432/2023, MOTION SEQ. No. 001 (N.Y. Sup. Ct. Oct 07, 2025)
• Docket Number: Index No. 850432/2023,MOTION SEQ. No. 001
• Decision Date: 07 October 2025
• Parties: WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST AS TRUSTEE FOR PNPMS TRUST Plaintiff, v. TRIPTA THUKRAL, ANUJ THUKRAL, 627 WEST 42ND STREET LLC A/K/A ATELIER CONDOMINIUM, SOUTH BROADWAY HOLDINGS LLC.ALEXANDER R. ACOSTA, JOHN DOE 1 THROUGH JOHN DOE 10, SAID NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF, INTENDED TO BE POSSIBLE TENANTS OR OCCUPANTS OF THE PREMISES, OR CORPORATIONS, PERSONS, OR OTHER ENTITIES HAVING OR CLAIMING A LIEN UPON THE MORTGAGED PREMISES Defendant.
• topic: Commercial Litigation,Contracts,Creditor Rights / Civil Enforcement,Real Estate

1

2025 NY Slip Op 34029(U)

WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST AS TRUSTEE FOR PNPMS TRUST Plaintiff, v. TRIPTA THUKRAL, ANUJ THUKRAL, 627 WEST 42ND STREET LLC A/K/A ATELIER CONDOMINIUM, SOUTH BROADWAY HOLDINGS LLC.ALEXANDER R. ACOSTA, JOHN DOE 1 THROUGH JOHN DOE 10, SAID NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF, INTENDED TO BE POSSIBLE TENANTS OR OCCUPANTS OF THE PREMISES, OR CORPORATIONS, PERSONS, OR OTHER ENTITIES HAVING OR CLAIMING A LIEN UPON THE MORTGAGED PREMISES Defendant.

Index No. 850432/2023, MOTION SEQ. No. 001

Supreme Court, New York County

October 7, 2025

Unpublished Opinion

PRESENT: HON. FRANCIS A. KAHN, III Justice

DECISION + ORDER ON MOTION

HON FRANCIS A. KAHN, III J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 64, 65, 66, 67, 68, 69, 70, 71, 72 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing papers, the motion is determined as follows:

This is an action to foreclose on a consolidated mortgage encumbering a parcel of residential real property located at 635 West 42 Street, 25F, New York, New York. The mortgage, dated June 15 2010, was given by Defendants Tripta Rani Thukral and Anuj Thukral ("Thukral") to non-party Signature Bank ("Signature") to secure an indebtedness with an original principal amount of $900,000.00. The loan is memorialized by a note dated the same day as the mortgage. Plaintiff commenced this action, and pled Defendants defaulted in repayment of the indebtedness beginning on or about April 3, 2018. Thurkal Defendants answered and pled forty-one affirmative defenses. Now, Plaintiff moves for summary judgment' against the appearing Defendants, to strike their answers and affirmative defenses, for a default judgment against the non-appearing Defendants, for an order of reference and to amend the caption. Thurkal Defendants oppose the motion.

In moving for summary judgment, Plaintiff was required to establish prima facie entitlement to j judgment as a matter of law though proof of the mortgage, the note, and evidence of Defendants' default in repayment (see U.S. Bank, N.A. v James, 180 A.D.3d 594 [1^st Dept 2020]; Bank of NY v Knowles, 151 A.D.3d 596 [1^st Dept 2017]; Fortress Credit Corp. v Hudson Yards, LLC, 78 A.D.3d 577 [1^st Dept 2010]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1^st Dept 2019]). Also, based on the affirmative defenses pled, Plaintiff was required to demonstrate its standing (see eg Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2^nd Dept 2020]). Proof supporting a prima facie case on a motion for summary judgment must be in admissible form (see CPLR §3212[b]; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 A.D.3d 780 [1^st Dept 2019]). A plaintiff may rely on evidence from persons with personal knowledge of the facts, documents in admissible form and/or persons with knowledge derived from produced admissible records (see eg U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 738 [2d Dept 2020]). No specific business records must be proffered, provided 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 A.D.3d 1014, 1015 [2d Dept 2017]).

Plaintiffs motion was supported with an affirmation from Augustina Abeyta, ("Abeyta"), an officer of Statebridge Company, LLC ("Statebridge"), the servicer for Plaintiff. Abeyta avers that the submission was based upon a review of the records of Statebridge, as well as knowledge of its record keeping practices. Abeyta's affidavit laid a proper foundation for the admission of the records of Statebridge into evidence under CPLR §4518 by sufficiently showing that the records relied upon "reflected] 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 [was] made pursuant to established procedures for the routine, habitual, systematic making of such a record" and "that the record [was] made at or about the time of the event being recorded" (Bank of N.Y.Mellon v Gordon, 171 A.D.3d 197, 204 [2d Dept 2019]; see also Bank of Am v Brannon, 156 A.D.3d 1 [1st Dept 2017]). The records of prior servicers were also admissible since Abeyta established that those records were received from the makers and incorporated into the records Statebridge kept and that it routinely relied upon such documents in its business (see eg U.S. Bank N.A. v Kropp-Somoza, 191 A.D.3d 918 [2d Dept 2021]). Further, the records referenced by Abeyta were annexed to the moving papers (cf. Deutsche Bank Natl. Trust Co. v Kirschenbaum, 187 A.D.3d 569 [1^st Dept 2020]). Statebridge's authority to act on Plaintiffs behalf was established with submission of a power of attorney dated July 18, 2022 (see U.S. Bank N.A. v Tesoriero, 204 A.D.3d 1066 [2d Dept 2022]; Deutsche Bank Natl. Trust Co. v Silverman, 178 A.D.3d 898 [2d Dept 2019]; US Bank N.A. v Louis, 148 A.D.3d 758 [2d Dept 2017]).

Proof of the loan documents, including the note and mortgage, was established in the first instance through the affirmation of Abeyta and the annexed documents (cf. 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 218 A.D.3d 417 [1^st Dept 2023]). A defendant's default, "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 A.D.3d 700, 702 [2d Dept 2020]). Abeyta's affidavit and the loan history demonstrated the mortgagor's default in repayment under the note (see eg ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition, LLC, 89 A.D.3d 506 [1^st Dept 2011]; see also Bank of NY v Knowles, supra; Fortress Credit Corp. v Hudson Yards, LLC, supra).

In opposition, Defendants' claim that Plaintiff failed to demonstrate all the elements of a cause of action for foreclosure is without merit. The affidavit and proffered business documents were all in admissible form. Further, since none of the salient facts on these issues were contradicted by any of the appearing defendants, they are "deemed to be admitted" (Bank of Am NA v Brannon, 156 A.D.3d, 1, 6 [1^st Dept 2017]).

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 commencement of the action (see eg Wells Fargo Bank, N.A. v Tricario, 180 A.D.3d 848 [2d Dept 2020]; Wells Fargo Bank, NA v Ostiguy, 127 A.D.3d 1375 [3d Dept 2015]). Standing is evaluated when an action is commenced, not thereafter (see eg IS REO Opportunity 1, LLC v Harlem Premier Residence, LLC, 234 A.D.3d 401 [1^st Dept 2025]) and may not be cured retroactively (see U.S. Bank N.A. v Dellarmo, 94 A.D.3d 746 [2d Dept 2012]).

It is undisputed that Plaintiff is not the originator of any of the loans or the named obligee on the notes. Standing via possession of the note, referred to as holder status "is established where the plaintiff possesses a note that, on its face or by allonge, contains an indorsement in blank or bears a special indorsement payable to the order of the plaintiff (Wells Fargo Bank, NA v Ostiguy, 127 A.D.3d 1375, 1376 [2d Dept 2015] [citations omitted]). The indorsement must be made either on the face of the note or on an allonge "so firmly affixed thereto as to become a part thereof (UCC §3-202[2]). "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 A.D.3d 636, 638 [2d Dept 2016]; cf. JPMorgan Chase Bank, N.A. v Grennan, 175 A.D.3d 1513 [2d Dept 2019]). However, "mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note" (U.S. Bank N.A. v Moulton, 179 A.D.3d 734, 737 [2d Dept 2020]).

Here, the indorsements of note are contained on an allonge on a separate page from the note. The copy of the note attached to the complaint did not reveal any indicia of firm annexation upon visual inspection (cf. U.S. Bank v Hunte, 215 A.D.3d 887 [2d Dept 2023]). Resultantly, Plaintiff was required, but failed, to establish that each allonge was "firmly affixed" to the note (see IS REO Opportunity 1, LLC v Harlem Premier Residence, LLC, 234 A.D.3d 401, 403 [1^st Dept 2025]; 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 218 A.D.3d 417 [1^st Dept 2023]). Not every attachment can satisfy UCC §3-202[2] and Abeyta offered no description of the nature of the attachment (see IS REO Opportunity 1, LLC v Harlem Premier Residence, LLC, supra at 402; HSBC Bank, USA, N.A. v Roumiantseva, 130 A.D.3d 983 [2d Dept 2015]; cf. U.S. Bank N.A. v Mave Hotel Invs. LLC, 231 A.D.3d 607 [1^st Dept 2024]), nor did she indicate "when she [,if ever,] reviewed the copy of the note and allonge" (Wells Fargo Bank, N.A. v Mitselmakher, 216 A.D.3d 1056, 1058 [2d Dept 2023]). Thus, absent is any proof of firm annexation "at the time of commencement of the action" (see U.S. Bank Trust, NA. v Loring, 193 A.D.3d 1101, 1103 [2d Dept 2021].

To the...