| Cenlar, FSB v Censor |
| 2016 NY Slip Op 03696 [139 AD3d 781] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| Cenlar, FSB, Respondent, v Kalman Censor etal., Appellants, et al., Defendant. |
Menashe & Associates, LLP, Montebello, NY (Michael Dachs of counsel), forappellants.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Robert H. King ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Kalman Censor and RevaCensor appeal, as limited by their brief, from so much of an order of the Supreme Court,Rockland County (Garvey, J.), dated January 14, 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.
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the plaintiff's motion which were for summary judgment onthe complaint, to strike the affirmative defense alleging that the plaintiff failed to complywith the notice requirements of RPAPL 1304, and to appoint a referee to compute theamount due, and substituting therefor a provision denying those branches of the motion;as so modified, the order is affirmed insofar as appealed from, with costs to theappellants.
On or about February 8, 2011, the plaintiff allegedly sent to Kalman Censor andReva Censor (hereinafter together the defendants) a 90-day notice pursuant to RPAPL1304, stating that they were in default on their December 2010 and January 2011mortgage payments, and that they had until March 2, 2011, to pay the arrears of$6,171.66. The plaintiff alleged that on March 21, 2011, it sent a letter to the defendantsdemanding the February 2011 and March 2011 payments.
The plaintiff commenced this mortgage foreclosure action in October 2012, allegingthat the defendants were in default on their mortgage payments as of March 1, 2011, andthat the "balance of principal due upon [the] note and mortgage . . . as of thetime of this Complaint is $272,304.71 plus interest from February 1st, 2011."
In their answer dated October 29, 2012, the defendants denied, inter alia, that theplaintiff properly served them with the 90-day pre-foreclosure notice required by RPAPL1304 and challenged the plaintiff's standing to bring this action.
[*2] After numerous foreclosure settlement conferencesfrom July 25, 2013 through May 22, 2014, the plaintiff moved, inter alia, for summaryjudgment on the complaint, to strike the affirmative defenses raised in the defendants'answer, and to appoint a referee to compute the amount due. The Supreme Court grantedthose branches of the plaintiff's motion.
The plaintiff failed to establish, prima facie, that it complied with the noticerequirement of RPAPL 1304 that, at least 90 days before commencing a foreclosureaction, a lender or loan servicer serve the borrower with a proper notice under the statute.In an attempt to meet its burden, the plaintiff submitted the affidavit of Anne Clements, a"Litigation Specialist" employed by the plaintiff, who averred that she was familiar withthe facts and circumstances set forth in her affidavit based on her review andexamination of the records maintained by the plaintiff in the regular course of business.Clements merely stated in her affidavit that the RPAPL 1304 notice was mailed to thedefendants "by both regular mail and certified mail" on January 31, 2011. No affidavit ofservice was provided. We find that Clements's unsubstantiated and conclusory statementswere insufficient to establish that the required RPAPL 1304 notice was mailed to thedefendants by first class and certified mail, especially where, as here, the plaintiff itselfalso submitted documents that contradicted Clements's sworn averments (see Cenlar, FSB v Weisz, 136AD3d 855, 856 [2016]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2015]). Sincethe plaintiff failed to meet its prima facie burden, we need not consider the sufficiency ofthe defendants' papers in opposition (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court erred in granting those branches of the plaintiff'smotion which were for summary judgment on the complaint, to strike the affirmativedefense alleging that the plaintiff failed to comply with the notice requirements ofRPAPL 1304, and to appoint a referee to compute the amount due.
However, the defendants also contend that the plaintiff did not establish prima faciethat it had standing to commence this action. Inasmuch as that issue is of continuingrelevance, we conclude that, contrary to the defendants' contention, the plaintiffdemonstrated, prima facie, that it had standing to commence this action by submittingevidence that, at the time the action was commenced, it had physical possession of theunpaid note (see Aurora LoanServs., LLC v Taylor, 25 NY3d 355 [2015]; LNV Corp. v Francois, 134 AD3d 1071 [2015]; Wells Fargo Bank, N.A. vParker, 125 AD3d 848, 850 [2015]). Specifically, Clements averred that theoriginal note was delivered to the plaintiff on November 1, 2004, and that the plaintiffmaintained possession of the original note since that date. Accordingly, the SupremeCourt properly granted that branch of the plaintiff's motion which was to strike theaffirmative defense alleging that the plaintiff lacked standing to commence thisaction.
Although the plaintiff also presented evidence that the mortgage was assigned to itprior to the commencement of the action (see Loancare v Firshing, 130 AD3d 787, 789 [2015]; HSBC Bank USA, N.A. vBaptiste, 128 AD3d 773, 774 [2015]), such evidence was not pertinent to theissue of standing because the mortgage passes with the note as an incident thereto and isnot dispositive in determining the issue of standing (see Aurora Loan Servs., LLC vTaylor, 25 NY3d at 361-362).
In light of our determination, we need not address the defendants' remainingcontentions. Balkin, J.P., Roman, Cohen and Maltese, JJ., concur.