| Pennymac Holdings, LLC v Tomanelli |
| 2016 NY Slip Op 03482 [139 AD3d 688] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Pennymac Holdings, LLC,Respondent, v Christopher Tomanelli, Also Known as Christopher M.Tomanelli, Appellant, et al., Defendants. |
Stim & Warmuth, P.C., Farmingville, NY (Glenn P. Warmuth of counsel), forappellant.
Fein, Such & Crane, LLP (Blank Rome LLP, New York, NY [Jonathan M.Robbin], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Christopher Tomanelli, alsoknown as Christopher M. Tomanelli, appeals (1) from an order of the Supreme Court,Suffolk County (Whelan, J.), dated September 10, 2015, and (2), as limited by his brief,from so much of an amended order of the same court dated September 23, 2015, asgranted those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against him, to strike his answer, and to appoint a referee tocompute the amount due to the plaintiff.
Ordered that the appeal from the order dated September 10, 2015, is dismissed, asthat order was superseded by the amended order dated September 23, 2015; and it isfurther,
Ordered that the amended order is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
In order to establish prima facie entitlement to judgment as a matter of law in aforeclosure action, a plaintiff must submit the mortgage and unpaid note, along withevidence of the default (seeWashington Mut. Bank v Schenk, 112 AD3d 615, 616 [2013]). Here, theplaintiff sustained its burden of demonstrating its prima facie entitlement to judgment asa matter of law by submitting the mortgage, the unpaid note, and the affidavit of CliffordGiles, a "Default Specialist III" of the plaintiff's loan servicer, attesting to the default ofthe defendant Christopher Tomanelli, also known as Christopher M. Tomanelli(hereinafter the defendant) (seeHSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1207 [2015]; Deutsche Bank Natl. Trust Co. vMonica, 131 AD3d 737, 738 [2015]; HSBC Bank USA, N.A. v Sage, 112 AD3d 1126, 1127[2013]; see also Wells FargoBank, N.A. v Arias, 121 AD3d 973 [2014]).
In opposition, the defendant failed to raise a triable issue of fact. Contrary to thedefendant's contention, the notice of default sent to him by the plaintiff substantiallycomplied with the terms of the mortgage (see Wachovia Bank, N.A. v Carcano, 106 AD3d 724, 725[2013]; Indymac Bank, [*2]F.S.B. v Kamen, 68 AD3d 931 [2009]).
Accordingly, the Supreme Court properly granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againstthe defendant, to strike the defendant's answer, and to appoint a referee to compute theamount due to the plaintiff. Leventhal, J.P., Hall, Hinds-Radix and LaSalle, JJ.,concur.