| GMAC Mtge., LLC v Bell |
| 2015 NY Slip Op 04095 [128 AD3d 772] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| GMAC Mortgage, LLC,Respondent, v Raymond Bell et al., Appellants, et al.,Defendants. |
Harvey Sorid, Uniondale, N.Y., for appellants.
Fein, Such & Crane, LLP, Westbury, N.Y. (Michael S. Hanusek of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Raymond Bell and Tricia M.Duffy appeal, as limited by their brief, from so much of an order of the Supreme Court,Nassau County (Adams, J.), entered February 28, 2013, as granted the plaintiff's motionfor summary judgment on the complaint insofar as asserted against them, and deniedtheir cross motion for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,the plaintiff's motion for summary judgment on the complaint insofar as asserted againstthe defendants Raymond Bell and Tricia M. Duffy is denied, and the cross motion ofthose defendants for summary judgment dismissing the complaint insofar as assertedagainst them is granted.
The Supreme Court should have granted the cross motion of the defendantsRaymond Bell and Tricia M. Duffy (hereinafter together the mortgagor defendants) forsummary judgment dismissing the complaint insofar as asserted against them. Themortgagor defendants established, prima facie, that the plaintiff failed to satisfy acondition precedent to the commencement of this action, since it failed to provide themwith a notice of default in the payment of their mortgage obligation, as required by theterms of the subject mortgage. In opposition, the plaintiff, relying on the affidavit of its"Authorized Officer," failed to raise a triable issue of fact. We agree with the mortgagordefendants that this affidavit, which asserted that the notice of default was sent inaccordance with the terms of the mortgage, was unsubstantiated and conclusory and that,even when considered together with the copy of the notice of default, failed to show thatthe required notice was in fact mailed by first class mail or actually delivered to thedesignated address if sent by other means, as required by the subject mortgage (see Wells Fargo Bank, N.A. vEisler, 118 AD3d 982 [2014]; HSBC Mtge. Corp. [USA] v Gerber, 100 AD3d 966[2012]).
In light of our determination, the mortgagor defendants' remaining contentions neednot be reached.
Accordingly, the Supreme Court should have granted the mortgagor defendants'cross motion for summary judgment dismissing the complaint insofar as asserted againstthem. Similarly, since the plaintiff failed to proffer evidence sufficient to establish, primafacie, that it complied with [*2]a condition precedent tothe enforcement of the mortgage, the Supreme Court should have denied the plaintiff'smotion for summary judgment on the complaint insofar as asserted against the mortgagordefendants (see Wells Fargo Bank, N.A. v Eisler, 118 AD3d at 983). Balkin, J.P.,Hall, Roman and Cohen, JJ., concur.