| HSBC Mtge. Corp. (USA) v Gerber |
| 2012 NY Slip Op 08098 [100 AD3d 966] |
| November 28, 2012 |
| Appellate Division, Second Department |
| HSBC Mortgage Corporation (USA),Respondent, v Dwora Gerber, Appellant, et al., Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Dwora Gerber appeals from so much ofan order of the Supreme Court, Rockland County (Kelly, J.), dated December 6, 2010, as grantedthose branches of the plaintiff's motion which were for summary judgment on the complaint, andto appoint a referee to compute.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintiff's motion which were for summary judgment dismissing the verifiedanswer of the defendant Dwora Gerber and on the complaint, and to appoint a referee to computeare denied.
The plaintiff commenced this action to foreclose a mortgage. In answering the complaint, thedefendant Dwora Gerber (hereinafter the defendant) set forth several affirmative defensesincluding that, as a condition precedent and in order to maintain the action, the plaintiff, pursuantto the mortgage documents, was required to send a notice of default/acceleration prior to thecommencement of the action, and that the plaintiff had failed to properly do so. The plaintiffmoved, inter alia, for summary judgment on the complaint and to appoint a referee to compute.
The plaintiff failed to establish its prima facie entitlement to judgment as a matter of law.The plaintiff failed to show that it complied with a condition precedent contained in the mortgageagreement, which required that it give the defendant notice of default prior to demandingpayment of the loan in full (see Norwest Bank Minn. v Sabloff, 297 AD2d 722 [2002];GE Capital Mtge. Servs. v Mittelman, 238 AD2d 471 [1997]). The unsubstantiated andconclusory statements in the affidavits of the plaintiff's employees that the required notice ofdefault was sent in accordance with the terms of the mortgage, combined with the copy of thenotice of default, failed to establish that the required notice was mailed to the defendant by firstclass mail or actually delivered to her notice address if sent by other means, as required by themortgage agreement (see New York &Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also Mid City Constr. Co., Inc. v SiriusAm. Ins. Co., 70 AD3d 789 [2010]). Since the plaintiff failed to meet its prima facieburden, we need not consider the sufficiency of the defendant's papers in opposition (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, theSupreme Court erred in granting those branches of the plaintiff's motion [*2]which were for summary judgment on the complaint and to appointa referee to compute.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dillon, Eng and Austin,JJ., concur.