Wells Fargo Bank, N.A. v. Benitez

194 A.D.3d 986

144 N.Y.S.3d 366 (Mem)

WELLS FARGO BANK, N.A., respondent,

v.Veronica BENITEZ, etc., appellant, et al., defendants.

2018–03006

Index No. 15433/13

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

Argued—February 11, 2021

May 19, 2021

Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.

Shapiro, DiCaro & Barak, LLC (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and Michael V. Margarella ], of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Veronica Benitez appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (Thomas Whelan, J.), dated November 20, 2018. The order and judgment of foreclosure and sale, upon an order of the same court dated December 10, 2017, granting the plaintiff's motion, inter alia, for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, which had been denied in an order of the same court (Daniel Martin, J.) dated December 14, 2016, and, upon renewal, in effect, vacating the determination in the order dated December 14, 2016, denying those branches of the prior motion, and thereupon granting those branches of the prior motion, among other things, directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

On August 20, 2007, the subject mortgage was executed by the defendant Veronica Benitez (hereinafter the defendant) in favor of AmTrust Bank to secure a promissory note executed on the same day in the principal sum of $358,500. The note (hereinafter the eNote) was signed by electronic signature. The defendant allegedly defaulted by failing to make the payment due as of August 1, 2010, and all payments thereafter.

In June 2013, the plaintiff commenced this action to foreclose the subject mortgage. The defendant interposed an answer asserting various affirmative defenses. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated December 14, 2016, the Supreme Court, among other things, denied those branches of the plaintiff's motion, with leave to renew. The plaintiff then moved, inter alia, for leave to renew those branches of its prior motion. In an order dated December 10, 2017, the court granted the plaintiff's motion for leave to renew and, upon renewal, among other things, granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint...