STATE OF NEW YORK

SUPREME COURT COUNTY OF KINGS

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

FOR BANC OF AMERICA FUNDING CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-F,

Plaintiff,
SUR-REPLY
V.

MICHAEL KRICHEVSKY,NEW YORK STATE

Index No.: 506127/2016
DEPARTMENT OF TAXATION AND FINANCE,
UNITED STATES OF AMERICA BY THE INTERNAL
REVENUE SERVICE,CITY OF NEW YORK PARKING
VIOLATIONS BUREAU,
and JOHN DOE,

Defendants.

Pursuant to CPLR 2106, and under penalty of petjury Michael Jablonski, Esq., affinns the
following;

1. Affibrmant is an attorney with Woods Oviatt Oilman LLP the attorneys of record for

the plaintiffin the above entitled action.

2. Thi.s Sur-Reply is submitted in response to the 'Affidavit of Truth in Opposition to

Motion for Order of Reference" of Defendant Michael Krichevsky ("Defendant") and in further

support ofPlaintiffs pending Motion for an Order of Reference ("Plaintiffs Motion"),and in further

opposition to Defendant's Cross-Motion seeking dismissal of the Complaint ("Defendant's Cross-

Motion"). Leave for Defendant to serve additional Opposition to Plaintiffs Motion, as well as for

Plaintiffto file a Sur-Reply thereto, was granted orally by this Court on November 13,2017.

3. Defendant, to the best of Plaintiffs counsel's ability to discern, alleges that Plaintiff

has not responded to various discovery demands including but not limited to requests for

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documentary proof of the existence of the Plaintiff and that therefore Plaintiff is not entitled to an

Order of Reference and Default Judgment.

4. However, as stated in more detail in Plaintiffs Affirmation in Opposition hereunder

dated October 31, 2017, Defendant is in default in Answering the Complaint and the issue has not

been joined. See AfjSrmation in Opposition of Michael Jablonski, Esq. dated October 31, 2017,

previously filed herein.

5. It remains that Defendant has not alleged a reasonable excuse for his failure to file a

timely Answer, as is required to vacate his default. Eaton v. Equitable Life Assurance Soc.. 56

N.Y.2d 900, 906, 438 N.E.2d 1119,1122,453 N.Y.S.2d 404,407,1982 N.Y. LEXIS 3505, *11-

12(1982).

6. A defaulting party is deemed to have admitted all allegations in the Complaint. See

McClelland v Climax Hosiery Mills. 252 NY 347,352(1930).

7. As such, discovery is not necessary as the disclosure requests served by the

Defendant could not possible pertain to relevant evidence.

8. "It is incumbent on the party seeking disclosure to demonstrate that the method of

discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to

lead to the discovery of information bearing on the claims r...l."Crazvtown Furniture. Inc. v

Brooklyn Union Gas Co.. 150 AD2d 420,421 (2d Dep't 1989).

9. That none of the disclosure requested by Defendant goes to the merits of the

instant motion, which is simply whether Plaintiff has demonstrated a prima facie case for

foreclosure and whether Defendant was in default in timely Answering the Complaint. See

CPLR 3215; Plaintiffs Affirmation of Regularity, AflBrmation in Opposition, and Reply,

previously filed herein.

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 10. Furthermore, the sufficiency of Plaintiffs motion for a defaultjudgment pursuant to

CPLR 3215 is to be judged at the time the motion was submitted, which predated the sejrvice of any

discovery demands by Defendant. See State of NY v Williams. 26 Misc 3d 743, 749 (Sup Ct,

Albany County 2009).

11. That Plaintiff has met its burden pursuant to CPLR 3215(f). See Plaintiffs

Affirmation of Regularity at Exhibits A and J. "The standard ofproof is not stringent, amounting

only to some firsthand confirmation ofthe facts." Feffer v. Malneso. 210 AD2d 60,61 (1st Dep't

1994).

12. Based on the foregoing, in light of Defendant's default and his failure to allege a

reasonable excuse for failing to submit a timely Answer,the relief requested by Plaintiff should not

be delayed by Defendant's requests for disclosure.

13. Furthermore, U.S. Bank National Association does in fact exist, as does the Trust for

which it acts as Trustee. See Plaintiffs Affirmation of Regularity at Exhibit P, previously filed

herein, see also https://vww.sec.gov/cgi-bin/browse-

edgar?action=getcompany«&CIK=0000830013&type=&dateb=&owner=include&start=1 OO&count

=100&output=xml.

14. That the various defenses alleged by Defendant in his additional Opposition have

been deemed waived pursuant to CPLR 3211(e)and furthermore lack merit.

15. That Plaintifif and its counsel categorically denies the remaining allegations,

conclusions, statements and arguments set forth by the Defendant.

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 16. Based on the foregoing, Plaintiffs Motion must be granted, in its entirety, and

Defendant's Cross-Motion must be denied, in its entirety, and with prejudice.

Dated: January 9,2018

fc^l Jablonski, Esq.

\t^neysfor Plaintiff
3ods Oviatt Oilman LLP
700 Crossroads Building
2 State Street
Rochester, NY 14614
Tel.:(855)227-5072

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