WILMINGTON SAVINGS FUND SOCIETY FSB v. E39 STREET LLC (2024)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants E39 Street, LLC, and Trinette Jackson appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated August 18, 2022.  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 the defendants E39 Street, LLC, and Trinette Jackson 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 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 E39 Street, LLC, and Trinette Jackson and for an order of reference are denied.

The plaintiff commenced this action against the defendants E39 Street, LLC, and Trinette Jackson (hereinafter together the defendants), among others, to foreclose a consolidated mortgage on certain real property located in Brooklyn.  After the defendants interposed an answer, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference.  By order dated August 18, 2022, the Supreme Court, among other things, granted those branches of the plaintiff's motion and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.  The defendants appeal.

Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see HSBC Bank USA, N.A. v. Bhatti, 186 A.D.3d 817, 819, 130 N.Y.S.3d 474;  Aurora Loan Servs., LLC v. Baritz, 144 A.D.3d 618, 619, 41 N.Y.S.3d 55).  “A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b];  3123), by an affidavit from ‘a person having [personal] knowledge of the facts’ (CPLR 3212[b]), or by other evidence ‘in admissible form’ ” (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 208, 97 N.Y.S.3d 286, quoting Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 507, 14 N.Y.S.3d 283, 35 N.E.3d 451).

Here, in support of its motion, the plaintiff submitted the affirmation of its counsel, Jennie Shnayder, who attested to the borrower's default in payment.  However, Shnayder stated that the basis of her knowledge was her review of the complaint, and she did not attest that she had personal knowledge of the defendants’ alleged default in payment or annex to her affirmation any other evidence thereof in admissible form.  Contrary to the plaintiff's contention on appeal, the notice of default annexed to Shnayder's affirmation was insufficient to establish the alleged default in payment (see Bank of N.Y. Mellon v. Mannino, 209 A.D.3d 707, 708–709, 177 N.Y.S.3d 67;  U.S. Bank N.A. v. Rowe, 194 A.D.3d 978, 980, 149 N.Y.S.3d 197;  Deutsche Bank Natl. Trust Co. v. McGann, 183 A.D.3d 700, 702, 122 N.Y.S.3d 76;  JPMorgan Chase Bank, N.A. v. Akanda, 177 A.D.3d 718, 719, 111 N.Y.S.3d 642;  Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 208–209, 97 N.Y.S.3d 286).

Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

DILLON, J.P., GENOVESI, WAN and TAYLOR, JJ., concur.