| Cenlar, FSB v Weisz |
| 2016 NY Slip Op 01147 [136 AD3d 855] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| Cenlar, FSB, Respondent, v Ervin Weisz et al.,Appellants, et al., Defendants. |
Menashe & Associates, LLP, Montebello, NY (Chezke Menashe of counsel),for appellants.
Rosicki, Rosicki & Associates P.C., Plainview, NY (Lijue T. Philip and AndrewMorganstern of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Ervin Weisz and Shoshy Weiszappeal (1), as limited by their brief, from so much of an order of the Supreme Court,Rockland County (Garvey, J.), dated January 15, 2015, as granted those branches of theplaintiff's motion which were for summary judgment on the complaint, to strike theaffirmative defenses raised in their answer, and to appoint a referee to compute theamount due to the plaintiff, and (2) from an order of the same court, also dated January15, 2015.
Ordered that the first order dated January 15, 2015, is reversed insofar as appealedfrom, on the law, those branches of the plaintiff's motion which were for summaryjudgment on the complaint, to strike the affirmative defenses raised in the appellants'answer, and to appoint a referee to compute the amount due to the plaintiff are denied,and the second order dated January 15, 2015, is vacated; and it is further,
Ordered that the appeal from the second order dated January 15, 2015, is dismissedas academic in light of our determination on the appeal from the first order; and it isfurther,
Ordered that one bill of costs is awarded to the appellants.
In 2003, Ervin Weisz and Shoshy Weisz (hereinafter the appellants) executed anddelivered a mortgage to the plaintiff's assignor as security for a home loan, which wasevidenced by a note. In March 2011, the appellants defaulted on their paymentobligations. In 2012, the plaintiff commenced this action against, among others, theappellants. The appellants interposed an answer in which they asserted severalaffirmative defenses including, as relevant to this appeal, that the plaintiff failed to servethem with the 90-day notice required by RPAPL 1304. After numerous foreclosuresettlement conferences from February 26, 2013 through July 10, 2014, followed by a45-day stay, the plaintiff moved, inter alia, for summary judgment on the complaint, tostrike the affirmative defenses raised in the appellants' answer, and to appoint a referee tocompute the amount due to the plaintiff. The Supreme Court granted those branches ofthe plaintiff's motion.
[*2] The plaintiff failedto establish, prima facie, that it strictly complied with the 90-day notice required byRPAPL 1304. In support of its motion, the plaintiff submitted the affidavit of Judy M.McLaughlin, a "Foreclosure Team Leader" employed by the plaintiff, who averred thatshe was familiar with the facts and circumstances set forth in her affidavit based on herreview and examination of the records maintained by the plaintiff in the regular course ofbusiness. McLaughlin stated in her affidavit that the RPAPL 1304 notice was mailed tothe borrowers "by regular and certified mail" on March 11, 2011. These unsubstantiatedand conclusory statements were insufficient to establish that the 90-day notice requiredby RPAPL 1304 was mailed to the appellants by first class and certified mail (see Citimortgage, Inc. vEspinal, 134 AD3d 876 [2015]; Bank of N.Y. Mellon v Aquino, 131 AD3d 1186,1186-1187 [2015]; Wells FargoBank, NA v Burke, 125 AD3d 765, 767 [2015]; Deutsche Bank Natl. Trust Co. vSpanos, 102 AD3d 909, 910 [2013]; HSBC Mtge. Corp. [USA] v Gerber, 100 AD3d 966[2012]).
Since the plaintiff failed to meet its prima facie burden, we need not consider thesufficiency of the appellants' papers in opposition (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court should havedenied those branches of the plaintiff's motion which were for summary judgment on thecomplaint, to strike the affirmative defenses raised in the appellants' answer, and toappoint a referee to compute the amount due to the plaintiff.
In light of our determination, we need not address the appellants' remainingcontention. Dillon, J.P., Cohen, Maltese and Barros, JJ., concur.