Cenlar, FSB v. Weisz

136 A.D.3d 855

25 N.Y.S.3d 308

CENLAR, FSB, respondent,

v.Ervin WEISZ, et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 17, 2016.

Menashe & Associates, LLP, Montebello, N.Y. (Chezke Menashe of counsel), for appellants.

Rosicki, Rosicki & Associates P.C., Plainview, N.Y. (Lijue T. Philip and Andrew Morganstern of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

In an action to foreclose a mortgage, the defendants Ervin Weisz and Shoshy Weisz appeal (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 the plaintiff's motion which were for summary judgment on the complaint, to strike the affirmative defenses raised in their answer, and to appoint a referee to compute the amount due to the plaintiff, and (2) from an order of the same court, also dated January 15, 2015.

ORDERED that the first order dated January 15, 2015, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for summary judgment 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 dismissed as academic in light of our determination on the appeal from the first order; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

In 2003, Ervin Weisz and Shoshy Weisz (hereinafter the appellants) executed and delivered a mortgage to the plaintiff's assignor as security for a home loan, which was evidenced by a note. In March 2011, the appellants defaulted on their payment obligations. In 2012, the plaintiff commenced this action against, among others, the appellants. The appellants interposed an answer in which they asserted several affirmative defenses including, as relevant to this appeal, that the plaintiff failed to serve them with the 90–day notice required by RPAPL 1304. After numerous foreclosure settlement conferences from February 26, 2013, through July 10, 2014, followed by a 45–day stay, the plaintiff moved, inter alia, for summary judgment 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. The Supreme Court granted those branches of the plaintiff's motion.

The plaintiff failed to establish, prima facie, that it strictly complied with the 90–day notice required by RPAPL 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 that she was familiar with the facts and circumstances set forth in her affidavit...