CITIMORTGAGE INC v. BARBER (2019)

DECISION & ORDER

ORDERED that the appeal by the defendant Abraham Barber is deemed dismissed pursuant to 22 NYCRR 1250.10(a);  and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant Eva L. Barber;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action to foreclose a mortgage, alleging that the defendant Eva L. Barber (hereinafter Barber) defaulted on a residential home loan.  The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Barber, to strike her answer, and for an order of reference.  Barber and the defendant Abraham Barber cross-moved, inter alia, in effect, for summary judgment dismissing the complaint insofar as asserted against Barber, arguing that the plaintiff failed to comply with RPAPL 1304 and failed to comply with a provision in the mortgage requiring the plaintiff to provide a 30–day notice to cure upon a borrower's default under the loan agreement.  The Supreme Court granted the plaintiff's motion and denied the cross motion.  Barber appeals.

“To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default” (CitiMortgage, Inc. v. McKenzie, 161 A.D.3d 1040, 1040, 78 N.Y.S.3d 200;  see Bank of N.Y. Mellon v. Zavolunov, 157 A.D.3d 754, 755–756, 69 N.Y.S.3d 356).  Here, in support of its motion, the plaintiff produced the mortgage, the unpaid note, and evidence of default (see Arch Bay Holdings, LLC v. Albanese, 146 A.D.3d 849, 45 N.Y.S.3d 506;  Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459).  Further, the plaintiff established, prima facie, that it complied with the notice requirements of RPAPL 1304, and with the requirement in the mortgage of providing a 30–day notice to cure as a condition precedent to commencing this action (see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 508–509, 14 N.Y.S.3d 283, 35 N.E.3d 451;  Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829, 414 N.Y.S.2d 117, 386 N.E.2d 1085;  cf. US Bank N.A. v. Sims, 162 A.D.3d 825, 826–827, 79 N.Y.S.3d 207).  In opposition, Barber failed to raise a triable issue of fact.

Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Barber, to strike her answer, and for an order of reference, and to deny that branch of the cross motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against Barber.

AUSTIN, J.P., MALTESE, CONNOLLY and CHRISTOPHER, JJ., concur.