Upon the E-file document list numbered 149 to 167, 170 to 175, and 178 to 183, read and considered on the motion by plaintiff for an order confirming the referee's report in accordance with section 1321 of the Real Property Actions and Proceedings Law, awarding a judgment of foreclosure and sale pursuant to section 1351 of the Real Property Actions and Proceedings Law, and directing the distribution of the sale proceeds pursuant to section 1354 of the Real Property [*2]Actions and Proceedings Law; it is

ORDERED that motion by plaintiff Elizon Master Participation Trust I, U.S. Bank Trust National Association, as Owner Trustee ("plaintiff" or "Elizon") for an order confirming the referee's report in accordance with section 1321 of the Real Property Actions and Proceedings Law ("RPAPL"), awarding a judgment of foreclosure and sale pursuant to RPAPL section 1351, and directing the distribution of the sale proceeds pursuant to section 1354 of the Real Property Actions and Proceedings Law, is granted (see Wells Fargo Bank, N.A. v Davis,216 AD3d 704, 187 NYS3d 112 [2d Dept 2023]; Wilmington Trust, N.A. v Reed, 210 AD3d 731, 177 NYS3d 642 [2d Dept 2022]; Bank of America v Scher,205 AD3d 989, 166 NYS3d 877 [2d Dept 2022]; HSBC Bank USA, N.A. v Blair-Walker,202 AD3d 1065, 163 NYS3d 582 [2d Dept 2022]; U.S. Bank N.A. v Morton,196 AD3d 715, 148 NYS3d 710 [2d Dept 2021]. Although the Court is not bound by the referee's findings (CPLR 4403; Citimortgage, Inc. v Kidd, 148 AD3d 767, 49 NYS3d 482 [2d Dept 2017]), the report of a referee should be confirmed, where, as here, the findings are substantially supported by the record (see HSBC Bank USA, N.A. v Blair-Walker,202 AD3d 1065, 163 NYS3d 582 [2d Dept 2022]; U.S. Bank N.A. v Morton,196 AD3d 715, 148 NYS3d 710 [2d Dept 2021]; Nationstar Mtge., LLC v Paganini,191 AD3d 790, 142 NYS3d 548 [2d Dept 2021]). In that regard, the referee's report identified the documents and sources upon which the referee based his findings and adequate documentary evidence to support the amounts due and owing plaintiff was submitted, that being the sworn affidavit of Frank Velazquez, an officer of plaintiff's servicer, and the business records referenced therein and attached thereto (see e.g. Wells Fargo Bank, N.A. v Davis,216 AD3d 704, 187 NYS3d 112 [2d Dept 2023]; Wilmington Trust , N.A. v Reed, 210 AD3d 731, 177 NYS3d 642 [2d Dept 2022]; Bank of America v Scher,205 AD3d 989, 166 NYS3d 877 [2d Dept 2022]; HSBC Bank USA, N.A. v Blair-Walker,202 AD3d 1065, 163 NYS3d 582 [2d Dept 2022]). The Court further notes that these same business records of plaintiff, including the complete transaction history on this loan, were previously admitted into evidence in connection with plaintiff's motion for summary judgment through the affidavit of Anthony Younger, assistant secretary of Rushmore Loan Management Services, LLC, then attorney-in-fact for plaintiff and the prior loan servicer of the subject loan. A referee hearing was not required, as defendant Mary Ellen Kane ("defendant") asserts, and although her counsel received notice of the referee's computations, defendant never requested a hearing nor submitted her own calculations for consideration by the referee (see HSBC Bank USA, N.A. v Blair-Walker,202 AD3d 1065, 163 NYS3d 582 [2d Dept 2022]; U.S. Bank N.A. v Morton,196 AD3d 715, 148 NYS3d 710 [2d Dept 2021]). Defendant also had an opportunity to present her own calculations by way of an affidavit or affirmation in opposition to plaintiff's within motion (see U.S. Bank Trust, N.A. v Bank of Am., N.A.,201 AD3d 769, 159 NYS3d 516 [2d Dept 2022]). No such affidavit or affirmation was filed and thus no admissible evidence has been presented by defendant to demonstrate that the referee's calculations are incorrect (see e.g. Wells Fargo Bank, N.A. v Davis,216 AD3d 704, 187 NYS3d 112 [2d Dept 2023]; Bank of NY Mellon v Ramsamooj,194 AD3d 997, 144 NYS3d 600 [2d Dept 2021]; Cenlar FSB v Glauber,188 AD3d 1141, 137 NYS3d 418 [2d Dept 2020]; Bank of NY v Viola,181 AD3d 767, 122 NYS3d 55 [2d Dept 2020]). In this regard, the attorney affirmation submitted on behalf of defendant is inadmissible hearsay as to any factual assertions contained therein (see Sabharwal v Hundai Mrin & Fire Ins. Co., Ltd.,216 AD3d 1015, 1017, [*3]189 NYS3d 660, 664 [2d Dept 2023]; Federal Natl. Mtge. Assn. v Raja,211 AD3d 692, 698, 181 NYS3d 103, 109 [2d Dept 2022]; Nationstar Mtge. LLC v Osikoya,205 AD3d 1038, 169 NYS3d 643 [2d Dept 2022]). Defendant otherwise provides no basis upon which to reject the referee's report (see U.S. Bank N.A. v Morton,196 AD3d 715, 148 NYS3d 710 [2d Dept 2021]; Excel Capital Group Corp. v 225 Ross St. Realty, Inc.,165 AD3d 1233, 87 NYS3d 604 [2d Dept 2018]). The Court has considered the other issues raised by defendant and finds that the arguments regarding them lack merit and as to other issues that were previously determined by this Court, such determinations are law of the case (see Wells Fargo Bank, N.A. v Archibald, 211 AD3d 1081, 1083, 180 NYS3d 617, 619 [2d Dept 2022]; see also HSBC Bank USA, N.A. v Blair-Walker, 202 AD3d 1065, 163 NYS3d 582 [2d Dept 2022]); and it is further

ORDERED that plaintiff is entitled to all unpaid installments due and owing from April 1, 2012 to the present. In making this determination, the Court rejects defendant's argument that the payments due on or before November 3, 2016 must be stricken from the referee's calculations based upon the six-year statute of limitations applicable to foreclosure matters (see CPLR § 213[4]; see also Bank of NY Mellon v Mor, 201 AD3d 691, 162 NYS3d 64 [2d Dept 2022]; Everhome Mtge. Co. v Aber, 195 AD3d 682, 151 NYS3d 55 [2d Dept 2021]; Deutsche Bank Natl. Trust Co. v Limtcher193 AD3d 686, 141 NYS3d 686 [2d Dept 2021]). A prior foreclosure action was timely commenced on February 14, 2018, which filing accelerated the entire unpaid principal balance and the complaint therein sought all payments that came due on the default date of April 1, 2012 and for each month thereafter. The prior action was dismissed by order of the court dated May 12, 2022 (Quinlan, J.) on the ground that plaintiff failed to comply with RPAPL 1304, citing the Second Department decision in Bank of America, N.A. v Kessler, 202 AD3d 10, 160 NYS3d 277 (2d Dept 2021), which was later reversed by the Court of Appeals (see Bank of America, N.A. v Kessler,39 NY3d 317, 326, 186 NYS3d 85 [2023]). After the dismissal of the prior foreclosure action, plaintiff utilized the savings clause under CPLR 205 (a) and filed the summons and complaint in this action within six months of that dismissal and filed the affidavit of service as to this defendant also within the six month time period under CPLR 205 (a).^[FN1] Thus, plaintiff complied with CPLR 205 (a). In addition, this [*4]action would be deemed timely under the new savings clause of CPLR 205-a (see Sperry Assoc. Fed. Credit Union v John, 218 AD3d 707, 193 NYS3d 209 [2d Dept 2023]; Raymond James Bank v Guzzetti, 80 Misc 3d 1214(A), 195 NYS3d 920 [Table][Sup Ct Suffolk County 2023]), and thus, plaintiff would be entitled to all unpaid installments due and owing from April 1, 2012 to the present. The Court rejects defendant's argument that plaintiff Elizon cannot invoke CPLR 205-a because it was not the original plaintiff in the prior dismissed action. The plaintiff's predecessor in interest, Wilmington Savings Fund Society, FSB, as Trustee for Stanwich Mortgage Loan Trust A ("Wilmington"), assigned the subject loan to this plaintiff, Elizon, on September 17, 2018, while the prior action was pending. Indeed, by order dated February 15, 2022 (Quinlan, J.), a date prior to the dismissal, the court granted the application of Wilmington to substitute Elizon in place and stead of Wilmington and to amend the caption accordingly. Therefore, when plaintiff Elizon commenced this action, it was the plaintiff in the prior action by and through an order of the court. As such, plaintiff has complied with both CPLR 205 (a) and CPLR 205-a (see Sperry Assoc. Fed. Credit Union v John, supra; Raymond James Bank v Guzzetti, supra). Moreover, "a foreclosure action is equitable in nature and triggers the equitable powers of the court. Once equity is invoked, the court's power is as broad as equity and justice require" (Countrywide Bank, FSB v Singh,173 AD3d 673, 103 NYS3d 467 [2d Dept 2019][internal quotations and citations omitted]; Mortgage Elec. Registration Sys., Inc. v Horkan, 68 AD3d 948, 890 NYS3d 326 [2d Dept 2009]). Based upon the circumstances presented, the Court invokes its equitable powers and finds that in the interest of justice, plaintiff is entitled to recoup all of the unpaid installments from April 1, 2012 to the present. As to the any other arguments raised by defendant on this issue, the Court finds that they lack merit (see generally Sperry Assoc. Fed. Credit Union v John, supra; Raymond James Bank v Guzzetti, supra); and it is further

ORDERED that the proposed judgment of foreclosure and sale, as modified by the Court, is signed contemporaneously herewith.

The foregoing constitutes the decision and Order of the Court.