![]() ![]() The second is that the court lacks personal jurisdiction over Markland due to improper service. The first affirmative defense is that the complaint fails to state a cause of action. Markland interposed an answer containing general denials and ten affirmative defenses. Markland defaulted under the terms of the mortgage and note by failing to make the payment which became due on or on any month thereafter. In conjunction with the mortgage, Markland signed an adjustable rate note in favor of plaintiff, requiring initial monthly payments in the amount of $3807.25 commencing on February 1, 2008. ![]() to secure a loan in the amount of $360,000.00 towards her purchase of the subject property. ![]() On December 11, 2007, Markland executed a mortgage in favor of plaintiff Emigrant Mortgage Company, Inc. The complaint alleges the following salient facts. By answer dated July 6, 2010, defendant Markland joined issue. On plaintiff Emigrant Mortgage Company, Inc., commenced this action to foreclose a mortgage encumbering the property at 653 East 79th Street in Brooklyn (hereinafter the subject property) by filing a summons and complaint and a notice of pendency with the Kings County Clerk's office. has moved for an order: (1) granting summary judgment in its favor as against defendant Melicia Markland (Markland) pursuant to CPLR 3212 (2) striking Markland's affirmative defenses (3) substituting Emigrant Savings Bank - Manhattan (hereinafter ESB) as named plaintiff (4) substituting Tanya Waters, George Smith and David Thompson in place of "John Doe No.1" through "John Doe #3" (5) striking the remaining "John Doe" defendants and amending the caption to reflect the substitutions (6) granting a default judgment against the non-appearing defendants pursuant to CPLR 3215 and (7) appointing a referee to compute pursuant to RPAPL 1321. Melicia Markland n/k/a MELICIA MARLAND JONES, et al., Defendants.īy notice of motion filed on April 9, 2012, under motion sequence number one plaintiff Emigrant Mortgage Company, Inc. This opinion is uncorrected and will not be published in the printed Official Reports.Įmigrant Mortgage Company, Inc., Plaintiff, Setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff's complaint is based, including the date of each item or transaction a description of the services, materials or goods supplied or other considerations rendered and the price or charge made for each such item or transaction.Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. To furnish to defendant _, within ten days hereafter, a bill of particulars TO PLAINTIFF, _ AND THEIR ATTORNEY OF RECORD:ĭEMAND IS HEREBY MADE UPON YOU pursuant to Code of Civil Procedure § 454 17.1 with the Request for Admission (see links below).īelow is a sample demand for particulars: ![]() For example, if payments are missing, send a request for admission asking the plaintiff to admit to the payment and include Form Interrogatory No. Use what was itemized in the BOP to determine if you need more information on amounts, items, etc. So, if the plaintiff later discovers that it did not include everything in its BOP, it must seek leave of court to amend the BOP. If the Complaint was verified then the BOP should have been verified.Īt trial, a plaintiff is limited to the items and amounts stated in the BOP. You can request information on the cause of action for an account stated and for "any agreement assigning the acct at issue to the Plaintiff & Plaintiff's atty" in your other discovery (see links below). Also, your demand for "any agreement assigning the acct at issue to the Plaintiff & Plaintiff's atty" would not be included in a BOP. If the Complaint contained a cause of action for an account stated, then producing any information on this cause of action would not be required by a Demand for a BOP. A BOP is not available in an action on an account stated. A BOP is essentially an itemization of the account. Yes, it does appear that this objection is valid. ![]()
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