| RBS Citizens, N.A. v Galperin |
| 2016 NY Slip Op 00173 [135 AD3d 735] |
| January 13, 2016 |
| Appellate Division, Second Department |
[*1]
| RBS Citizens, N.A., Formerly Known as Citizens Bank,N.A., Successor by Merger to Charter One Bank, N.A., Formerly Known as Charter OneBank, FSB, Successor by Merger to Albank, FSB, Formerly Known as Albany SavingsBank, FSB, Respondent, v Jeffrey Galperin et al., Appellants, et al.,Defendants. |
Clair & Gjertsen, Scarsdale, NY (Mary Aufrecht of counsel), forappellants.
Cooper Erving & Savage LLP, Albany, NY (Brian W. Matula and Michael A.Kornstein of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Jeffrey Galperin and SallieGalperin appeal, as limited by their brief, from so much of an order of the SupremeCourt, Westchester County (Giacomo, J.), entered November 12, 2014, as granted thosebranches of the plaintiff's motion which were for summary judgment on the complaintand to appoint a referee to compute.
Ordered that the order is affirmed insofar as appealed from, with costs.
In January 2009, the plaintiff commenced this action to foreclose a mortgage on realproperty located in Rye and owned by the defendants Jeffrey Galperin and SallieGalperin (hereinafter together the appellants). Although a judgment of foreclosure andsale was entered in January 2011, followed in May 2011 by an amended judgment offoreclosure and sale, the Supreme Court, in an order dated January 30, 2012, upon awritten stipulation between the plaintiff and the appellants dated January 17, 2012,vacated the judgment of foreclosure and sale, as amended, and directed the appellants toanswer the complaint. The appellants interposed an answer dated February 15, 2012. Inthe answer, they denied knowledge or information sufficient to form a belief as to theplaintiff's specific allegation in the complaint that the plaintiff had complied with aprovision in the mortgage contract which required a 30-day notice to cure. They alsoasserted an affirmative defense that unspecified required notices were not "adequatelygiven." In an order dated June 3, 2014, the Supreme Court directed the dismissal of thecomplaint for failure to prosecute. Thereafter, the plaintiff moved, inter alia, to vacate theorder dated June 3, 2014, and for summary judgment on the complaint and to appoint areferee to compute. The Supreme Court granted the motion. The appellants now appealfrom so much of the order as granted those branches of the plaintiff's motion which werefor summary judgment on the complaint and to appoint a referee to compute.
"Generally, '[i]n residential mortgage foreclosure actions . . . a plaintiffestablishes its prima facie entitlement to judgment as a matter of law by producing themortgage and the unpaid note, and evidence of the default' " (TD Bank, N.A. v Mandia, 133AD3d 590, 591 [2015], quoting Midfirst [*2]Bank v Agho, 121AD3d 343, 347 [2014]). In addition, where it is alleged that the plaintiff has failedto comply with a condition precedent to the enforcement of the mortgage, the plaintiffmust proffer sufficient evidence to establish, prima facie, that it complied with thecondition precedent (see GMACMtge., LLC v Bell, 128 AD3d 772, 773 [2015]; Wells Fargo Bank, N.A. vEisler, 118 AD3d 982, 983 [2014]).
Here, the plaintiff established its prima facie entitlement to judgment as a matter oflaw by producing the mortgage, the unpaid note, and evidence of the appellants' default.Additionally, the plaintiff submitted the affidavit of its foreclosure specialist, whoexpressly confirmed the accuracy of the plaintiff's documents. This affidavit, when readin conjunction with the complaint and other exhibits submitted in support of the motion,established a prima facie case. In opposition, the appellants failed to raise a triable issueof fact (see TD Bank, N.A. v Mandia, 133 AD3d at 591).
The appellants' remaining contentions are without merit or have been renderedacademic by our determination.
Accordingly, the Supreme Court properly granted those branches of the plaintiff'smotion which were for summary judgment on the complaint and to appoint a referee tocompute. Dillon, J.P., Dickerson, Hinds-Radix and Maltese, JJ., concur.