Hudson City Sav. Bank v. Ellia

210 A.D.3d 750

178 N.Y.S.3d 136

HUDSON CITY SAVINGS BANK, respondent,

v.Anthony ELLIA, appellant, et al., defendants.

2020–02753, 2020–02755

Index No. 601023/17

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

Submitted—March 22, 2022

November 9, 2022

Law Office of Maggio & Meyer, PLLC, Bohemia, NY (Holly C. Meyer of counsel), for appellant.

Akerman LLP, New York, NY (Jordan M. Smith and Eric M. Levine of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Anthony Ellia appeals from two orders of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), both dated February 6, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and affirmative defenses, and for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the first order dated February 6, 2020, is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and his affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference, and substituting therefor a provision denying those branches of the motion; as so modified, the first order dated February 6, 2020, is affirmed insofar as appealed from, and so much of the second order dated February 6, 2020, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further,

ORDERED that the appeal from so much of the second order dated February 6, 2020, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff is dismissed as academic in light of our determination on the appeal from the first order dated February 6, 2020; and it is further,

ORDERED that the second order dated February 6, 2020, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Anthony Ellia.

In January 2017, the plaintiff commenced this action against, among others, the defendant Anthony Ellia (hereinafter the defendant) to foreclose a mortgage encumbering certain real property in Suffolk County. The defendant interposed an answer in which he asserted, inter alia, affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer and affirmative defenses, and for an order of reference. As is relevant to these appeals, in an order dated February 6, 2020, the Supreme Court granted those branches of the plaintiff's motion. In a second order of the same date, the court, inter alia, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.

Contrary to the defendant's contention, the plaintiff demonstrated, prima facie, that it strictly complied with RPAPL 1304 (see Homebridge Fin. Servs., Inc. v. Mauras, ...