Attorney for defendants Kasman P.O. Box 1291

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1 MEMORANDU M SUPREME COURT, COUNTY OF NASSAU, BANKERS TRUST COMPANY OF CALIFORNIA, N.A., AS TRUSTEE OF CERTIFICATE HOLDERS OF BEAR STERNS ASSET BACKED SECURITIES, INC., ASSET BACKED SECURITIES SERIES 200 l-2; IAS PART4 BY: HON. BRUCE D. ALPERT Plaintiff, - against - Index No. 2256/03 Motion Sequence No. 1 Motion Date: October 20,2003 DATED: January 7,2004 LISA KASMAN A/K/A LISA KASMAN-STONE A/WA LISA STONE; JACK STONE; WILSHIRE FUNDING CORPORATION; UNITED STATES OF AMERICA; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE AND/OR COMMISSIONER OF TAXATION AND FINANCE; LONG ISLAND CARPET CLEANERS, INC., D/B/A AMERICAN FIRE RESTORATION; APS SECURITY, INC., HAL DARNELL; I.P.M. LANDSCAPING CORP.; 0. SCHRIEBER; S. SAAD; J. JOHNSON; M.D.S.; COMMANDER OIL CO.,; JOHN ONE through and including JOHN TEN the last ten names being fictitious and unknown to the plaintiff, said names being intended to designate the persons or parties or corporations, if any, having or claiming an interest in or lien upon the premises in the complaint, s.. Steven J. Baum, P.C. Howard D. Arber, Esq. Attorney for Plaintiff Attorney for defendants Kasman P.O. Box Oak Street Buffalo, New York Garden City, New York & Stone

2 Spizz & Cooper, LLP Attorney for APS Security, Inc. 114 Old Country Road Mineola, New York Willshire Funding Corp SW Millikan Way Beaverton, Or Hon. Roslynn R. Mauskopf United States Attorney Attorney for United States of America 1 Pierrepont Plaza Brooklyn, New York New York State Department of Taxation & Finance 175 Fulton Avenue Hempstead, New York Long Island Carpet Cleaners, Inc. D/B/A American Fire Restoration 41 State Street Albany, New York Hal Damell, B Grand Central Parkway Floral Park, New York Richard L. Reers, Esq. Attorney for I.P.M. Landscaping Corp. 99 Hillside Avenue Williston Park, New York Beneficial N.Y., Inc. 961 Weigel Dr. Elmhurst, Il Jerald J. Desocio, Esq. Attorney for Schtieber, Saad Johnson, and M.D.S Veterans Highway Islandia, New York Petro, Inc. d/h/a Commander Oil Co. 41 State Street Albany, New York In this application the plaintiff moves for summary judgment against defendants Kasman and Stone and, implicitly, for the entry of judgment against the remaining defendants under CPLR and RPAPL and for deletion of all references to defendants JOHN ONE

3 through and including JOHN TEN. Upon a grant of such relief, the plaintiff seeks the appointment of a referee to compute the sums due and owing and to examine and report whether the mortgaged premises may be sold in parcels. It is fundamental law that in order to obtain summary judgment a movant must first tender evidentiary proof in admissible form establishing an entitlement to summary judgment (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1; Zuckerman v City of New York, 49 NY2d 557,562); only after such showing does the burden shift to the nomnoving party to raise an issue of fact (see, Zuckerman v City of New York, supra, at 562). (Cleveland Brothers Equipment Company v Dominic Dan Alonzo, Inc., 241 AD2d 869,871 [3d Dept.]) It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default * * * When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to his default (Village Bank v Wild Oaks Holding, 196 AD2d 812; see also, DiNardo v Patcam Ser. Sta., 228 AD2d 543). (Bank of Boston [Connecticut] v Mauro, 245 AD2d ) The plaintiff satisfied its burden through the submission of the mortgage, note and proof of the defendants default, thereby establishing prima facie entitlement to summary disposition. (see, Federal Home Loan Mortgage Corp. v Karastathis, 237 AD2d 558,559) Where, as here, plaintiff makes the requisite showing, the burden shifts to the opposing parties to lay bare and assemble their proof in admissible and nonconclusory form, in order to show that the matters alleged in their pleading are real and capable of being established at trial. (see, Nel Taxi Corp. v Eppinger, 203 AD2d 438) In this Court s view, defendants Kasman and Stone failed to meet their evidentiary

4 burden. In this regards the Court notes that the opposing papers are devoid of probative material and consist exclusively of the affirmation of counsel. For the reasons hereinafter articulated, neither the legal issues asserted by opposing counsel, nor the affirmative defenses raised in the subject defendants answer may forestall a grant of the relief herein sought. Initially, opposing counsel s contention that the plaintiff did not make a prima facie demonstration fails inasmuch as the motion is supported by an affidavit authored by one professing the requisite knowledge of the underlying facts. That the affant is an employee of entity servicing the underlying mortgage and not the most recent assignee in the chain appears without legal significance in light of the affiant s representations concerning the records reviewed. The jurisdictional defense raised in the answer interposed by defendants Kasman and Stone has been waived. (see, CPLR 3211 [e]; NAB Asset Venture IV, L.P. v Orangeburg Equities, 299 AD2d 528) The opposing defendants reliance on the pendency of a prior action as a defense to the instant action is misplaced in light of the disposition of the earlier proceeding. (see, Thompson v Thompson, 103 AD2d 772) In light of the Order of the Hon. Melanie L. Cyganowski dated January 8,2003, which vacated the stay imposed under $362 of the Bankruptcy Code, the remaining impediment to the prosecution of the instant action has been removed. Based on the foregoing, the instant application is granted. Pursuant to CPLR 8106 and 8202, motion costs in the sum of $100 are imposed against defendants Kasman and Stone and

5 awarded to the plaintiff. Settle Order on Notice, and submit same together with proof that the assignment of the underlying mortgage from EMC Mortgage Corporation to the plaintiff herein has been recorded.