NORWEST BANK MINNESOTA v. SABLOFF

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

NORWEST BANK MINNESOTA, N.A., etc., Respondent, v. Warren SABLOFF, et al., Appellants, et al., Defendants.

Decided: September 23, 2002

FRED T. SANTUCCI, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN and SANDRA L. TOWNES, JJ. Mark D. Mermel, Lake Success, N.Y., for appellants. Harry Zubli, Great Neck, N.Y., for respondent.

In an action to foreclose a mortgage, the defendants Warren Sabloff, Ellen Sabloff, and Josh Sabloff appeal from an order of the Supreme Court, Nassau County (McCaffrey, J.), entered April 18, 2001, which granted the plaintiff's motion, inter alia, for summary judgment against Warren Sabloff and Ellen Sabloff and for the appointment of a referee to ascertain and compute the amount due on the note and mortgage and denied their cross motion for summary judgment dismissing the complaint insofar as asserted against Warren Sabloff and Ellen Sabloff and to dismiss the complaint insofar as asserted against Josh Sabloff pursuant to CPLR 3215(c).

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion which were for summary judgment and appointment of a referee to ascertain and compute the amount due on a note and mortgage, and substituting therefor a provision denying those branches of the motion;  as so modified, the order is affirmed, with costs to the appellants.

 The Supreme Court improperly granted those branches of the plaintiff's motion which were for summary judgment and appointment of a referee to ascertain and compute the amount due on a note and mortgage.   The proponent of a motion for summary judgment bears the initial burden of making a “prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  see Katona v. Low, 226 A.D.2d 433, 641 N.Y.S.2d 62).   Contrary to the plaintiff's contention, it failed to demonstrate that the mortgage was properly accelerated as a matter of law (cf. First Fed. Sav. Bank v. Midura, 264 A.D.2d 407, 694 N.Y.S.2d 121).

Although the language contained in the letter allegedly sent to the appellants satisfied the requirements expressed in the mortgage agreement, and the filing of the summons and complaint constituted a proper acceleration of the mortgage (see Franklin Soc. Fed. Sav. & Loan Assn. v. Far Pap Corp., 57 A.D.2d 607, 393 N.Y.S.2d 782), the plaintiff's submissions, including an attorney's affirmation containing conclusory assertions that notice was given, were insufficient to establish that the plaintiff served on the appellants the requisite notice to cure their default as expressly required in the mortgage agreement (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Menzel v. Plotnick, 202 A.D.2d 558, 610 N.Y.S.2d 50;  Bank of New York v. Cerasaro, 98 A.D.2d 902, 470 N.Y.S.2d 894;  cf. Engel v. Lichterman, 62 N.Y.2d 943, 479 N.Y.S.2d 188, 468 N.E.2d 26;  Strober King Bldg. Supply Ctrs. v. Merkley, 266 A.D.2d 203, 697 N.Y.S.2d 319).

 However, the Supreme Court properly denied that branch of the appellants' cross motion which was to dismiss the complaint insofar as asserted against Josh Sabloff under CPLR 3215(c).  Within a year after the service of the summons and complaint upon Josh Sabloff, the plaintiff obtained the report of the amount due, and obtained a judgment of foreclosure and sale, which was subsequently vacated.   The plaintiff's efforts negated any presumption that the action against Josh Sabloff was abandoned (see Home Sav. of Am., F.A. v. Gkanios, 230 A.D.2d 770, 646 N.Y.S.2d 530).

The appellants' remaining contentions are without merit (see Diamadopolis v. Balfour, 152 A.D.2d 532, 543 N.Y.S.2d 472;  Home Sav. of Am., F.A. v. Gkanios, supra).

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