Nationstar Mortg., LLC v. Koznitz I, LLC

208 A.D.3d 500

173 N.Y.S.3d 562

NATIONSTAR MORTGAGE, LLC, respondent,

v.KOZNITZ I, LLC, appellant, et al., defendants.

2020–02217

Index No. 701597/15

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

Argued—April 4, 2022

August 3, 2022

Solomon Rosengarten, Brooklyn, NY, for appellant.

McCalla Raymer Leibert Pierce, New York, NY (David Gantz of counsel), for respondent.

BETSY BARROS, J.P., FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Koznitz I, LLC, appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated January 2, 2020. The order, insofar as appealed from, upon a decision of the same court dated October 21, 2019, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against that defendant, to strike its answer, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the order is modified, on the law, (1) 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 Koznitz I, LLC, and for an order of reference, and referring the matter to a referee to ascertain and compute the amount due to the plaintiff, and substituting therefor a provision denying those branches of the motion, and (2) by deleting the provision thereof granting that branch of the plaintiff's motion which was to strike the answer of the defendant Koznitz I, LLC, and substituting therefor a provision granting that branch of the motion to the extent of striking so much of the answer as asserted the affirmative defense of noncompliance with RPAPL 1304 and otherwise denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Koznitz I, LLC.

On August 18, 2008, Mohammed Alam executed a note in favor of AmTrust Bank in the principal sum of $533,850. The note was secured by a mortgage on residential property in East Elmhurst (hereinafter the subject property), and was signed by electronic signature. Alam allegedly defaulted by failing to make the payment due May 1, 2009, and all payments thereafter. By deed dated June 28, 2013, Alam transferred the subject property to the defendant Koznitz I, LLC (hereinafter Koznitz).

In January 2015, the plaintiff commenced this action to foreclose the mortgage against Alam, among others. In January 2017, the plaintiff served a supplemental summons and amended complaint adding Koznitz as a defendant and striking Alam as a defendant. Koznitz interposed an answer in which it asserted various affirmative defenses, including lack of standing and noncompliance with RPAPL 1304.

The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against Koznitz, to strike its answer, and for an order of reference. Koznitz opposed the motion. In an order dated January 2, 2020, the Supreme Court, upon a decision dated October 21, 2019, inter alia, granted those branches of the plaintiff's motion and referred the matter to a referee to compute the amount due to the plaintiff. Koznitz appeals.

"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( U.S. Bank N.A. v. Ramanababu, 202 A.D.3d 1139, 1141, 163 N.Y.S.3d 254 [internal quotation marks omitted]). "A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" ( BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d 960, 962, 146 N.Y.S.3d 166 [internal quotation marks omitted]).

Here, in support of its motion, the plaintiff submitted, among other things, the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to Alam's default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff's record-keeping practices and procedures (see CPLR 4518[a] ), she did not identify the records she relied upon, and did not attach them to her affidavit (see U.S. Bank N.A. v. Ramanababu, 202 A.D.3d at 1141–1142, 163 N.Y.S.3d 254 ). Thus, her assertions as to the contents of these records were inadmissible (see id. ). Since the plaintiff failed to establish the default in payment, it failed to establish its prima facie entitlement to judgment as a matter of law as well as its entitlement to an order of reference (see BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d at 962, 146 N.Y.S.3d 166 ).

The plaintiff also failed to establish, prima facie, its standing to commence the action. Where, as here, the plaintiff's standing has been placed in issue by the defendants’ answer, the plaintiff must prove its standing as...