Wells Fargo Bank, N.A. v. Ghobrial

197 A.D.3d 530

148 N.Y.S.3d 723 (Mem)

WELLS FARGO BANK, N.A., respondent,

v.Malak GHOBRIAL, et al., appellants, et al., defendants.

2019–02924

Index No. 100867/08

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

Argued—May 17, 2021

August 4, 2021

Robert E. Brown, P.C., Staten Island, NY, for appellants.

Reed Smith LLP, New York, N.Y. (James N. Faller and Andrew B. Messite of counsel), for respondent.

HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Malak Ghobrial and Stephanie Naveja–Ghavrial appeal from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated December 13, 2018. The 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 those defendants, to strike their answer, and for an order of reference.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Malak Ghobrial and Stephanie Naveja–Ghavrial, to strike their answer, and for an order of reference are denied.

The plaintiff commenced this action against the defendants Malak Ghobrial and Stephanie Naveja–Ghavrial (hereinafter together the defendants), among others, to foreclose a mortgage secured by certain real property in Staten Island. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and an order of reference. The defendants opposed the motion and cross-moved to dismiss the complaint on the ground that the plaintiff lacked standing. By order dated December 13, 2018, the Supreme Court granted the plaintiff's motion and denied the defendants’ cross motion. The defendants appeal.

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 (see Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 ). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law on the complaint by producing the note, the mortgage, and evidence of the defendants’ default (see U.S. Bank N.A. v. Blake–Hovanec, 191 A.D.3d 821, 142 N.Y.S.3d 556 ; HSBC Bank USA v. Olivier, 179 A.D.3d 648, 649, 113 N.Y.S.3d 590 ).

In opposition, however, the defendants raised a...