HSBC Bank USA, N.A. v. Sandoval

2021 NY Slip Op 00303, 136 N.Y.S.3d 774, 190 A.D.3d 844

Opinion

HSBC Bank USA, N.A. v Sandoval (2021 NY Slip Op 00303)

HSBC Bank USA, N.A. v Sandoval

2021 NY Slip Op 00303

Decided on January 20, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 20, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, A.P.J.
CHERYL E. CHAMBERS
ANGELA G. IANNACCI
PAUL WOOTEN, JJ.

2018-14792
(Index No. 31782/15)

[*1]HSBC Bank USA, National Association, etc., respondent,

v

Morris Sandoval, appellant, et al., defendants.

Zerrilli & Associates, P.C., New City, NY (Joseph M. Becker of counsel), for appellant.

Gross Polowy, LLC, Westbury, NY (John Ricciardi and Stephen J. Vargas of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Morris Sandoval appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Rockland County (Thomas E. Walsh II, J.), dated November 21, 2018. The order and judgment of foreclosure and sale, upon an order of the same court dated May 22, 2018, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Morris Sandoval, to strike that defendant's affirmative defenses, and for an order of reference, among other things, granted the plaintiff's motion to confirm a referee's report and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Morris Sandoval, to strike that defendant's affirmative defenses, and for an order of reference are denied, and the order dated May 22, 2018, is modified accordingly.

For reasons set forth in Bank of N.Y. Mellon v Gordon (171 AD3d 197, 208-209), we find that the plaintiff failed to establish, prima facie, that the defendant Morris Sandoval defaulted in the repayment of the subject loan. 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 Sandoval, to strike his affirmative defenses, and for an order of reference regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

MASTRO, A.P.J., CHAMBERS, IANNACCI and WOOTEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court