WELLS FARGO BANK v. GIZZO (2021)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Kathleen Gizzo and Pasquale Gizzo appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated February 23, 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 the defendants Kathleen Gizzo and Pasquale Gizzo, to strike their answer, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff met its prima facie burden of establishing its entitlement to judgment as a matter of law by producing the mortgage agreement, the unpaid note, and evidence of the default of the defendants Kathleen Gizzo and Pasquale Gizzo (hereinafter together the defendants) in their payment obligations (see Wells Fargo Bank, N.A. v. Miller, 150 A.D.3d 1046, 1048, 55 N.Y.S.3d 309;  Bank of Smithtown v. 219 Sagg Main, LLC, 107 A.D.3d 654, 655, 968 N.Y.S.2d 95).  The burden then shifted to the defendants to “raise a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff” (M & T Bank v. Capolino, 168 A.D.3d 1045, 1047, 93 N.Y.S.3d 117).  However, the defendants' conclusory and unsubstantiated allegations submitted in opposition to the plaintiff's motion failed to raise a triable issue of fact (see Deutsche Bank Natl. Trust Co. v Twersky, 135 A.D.3d 895, 896, 24 N.Y.S.3d 193;  Bank of Am., N.A. v. Lucido, 114 A.D.3d 714, 716, 981 N.Y.S.2d 433;  Bank of Smithtown v. 219 Sagg Main, LLC, 107 A.D.3d at 655, 968 N.Y.S.2d 95).

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference.

MASTRO, A.P.J., BARROS, CONNOLLY and WOOTEN, JJ., concur.