Fed. Nat'l Mortg. Ass'n v. Hollien

2021 NY Slip Op 05321

Federal National Mortgage Association, respondent, v. Jennifer Hollien, et al., appellants, et al., defendants.

No. 2018-03934, Index No. 30057/13

Supreme Court of New York, Second Department

October 6, 2021

Motion by the respondent for leave to reargue appeals from two orders of the Supreme Court, Suffolk County, entered April 6 2017, and dated December 5, 2017, respectively, which were determined by decision and order of this Court dated March 31, 2021.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion for leave to reargue is granted, and, upon reargument, the decision and order of this Court dated March 31, 2021 (Federal Natl. Mtge. Assn. v Hollien, 192 A.D.3d 1080), is recalled and vacated, and the following decision and order is substituted therefor:

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara Wolf & Carone, LLP, Lake Success, NY (Christopher A Gorman of counsel), for appellants.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Margaret S. Stefandl of counsel), for respondent.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER ON MOTION

In an action to foreclose a mortgage, the defendants Jennifer Hollien and Steven Kosin appeal from (1) an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), entered April 6, 2017, and (2) an order of the same court dated December 5, 2017. The order entered April 6, 2017, insofar as appealed from, granted that branch of the plaintiff's motion which was to strike the affirmative defenses of the defendants Jennifer Hollien and Steven Kosin alleging lack of standing and denied those defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them. The order dated December 5, 2017, insofar as appealed from, granted those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against the defendants Jennifer Hollien and Steven Kosin and for an order of reference, and denied those defendants' cross motion for leave to renew their prior cross motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order entered April 6, 2017, is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was to strike the affirmative defenses of the defendants Jennifer Hollien and Steven Kosin alleging lack of standing, and substituting therefor a provision denying that branch of the motion; as so modified, the order entered April 6, 2017, is affirmed insofar as appealed from; and it is further, ORDERED that the order dated December 5, 2017, is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's renewed motion which were for summary judgment on the complaint insofar as asserted against the defendants Jennifer Hollien and Steven Kosin and for an order of reference, and substituting therefor a provision denying those branches of the motion; as so modified, the order dated December 5, 2017, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendants Jennifer Hollien and Steven Kosin.

In November 2013, the plaintiff commenced this action to foreclose a mortgage against the defendants Jennifer Hollien and Steven Kosin (hereinafter together the defendants), among others, alleging that the defendants executed a mortgage agreement encumbering certain real property in Shirley and securing a loan in the principal sum of $216, 800. The plaintiff alleged that the defendants breached the terms of the note and mortgage agreement by failing to make the required monthly payment on January 1, 2013, and all subsequent monthly payments. Thereafter, the defendants served an answer raising, inter alia, affirmative defenses alleging lack of standing and failure to comply with the notice requirements of RPAPL 1304 and 1306.

In May 2015, the...