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Citibank v. Cywinski

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Mar 10, 2021
192 A.D.3d 754 (N.Y. App. Div. 2021)

Opinion

2018–11362 Index No. 7573/12

03-10-2021

CITIBANK, N.A., etc., respondent, v. Frank CYWINSKI, et al., appellants, et al., defendants.

Fred M. Schwartz, Smithtown, NY, for appellants. Ras Boriskin, LLC (Greenberg Traurig, LLP, New York, N.Y. [Ryan Sirianni and Patrick G. Broderick ], of counsel), for respondent.


Fred M. Schwartz, Smithtown, NY, for appellants.

Ras Boriskin, LLC (Greenberg Traurig, LLP, New York, N.Y. [Ryan Sirianni and Patrick G. Broderick ], of counsel), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Frank Cywinski and Sandra Cywinski appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 13, 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 those defendants, to strike their answer, and for an order of reference.

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 Frank Cywinski and Sandra Cywinski, to strike those defendants' answer, and for an order of reference are denied.

The plaintiff failed to establish, prima facie, its standing to commence the action (see Bank of Am., N.A. v. Sebrow, 180 A.D.3d 982, 984–985, 120 N.Y.S.3d 154 ; Wells Fargo Bank, N.A. v. Meisels, 177 A.D.3d 812, 814–815, 111 N.Y.S.3d 706 ). In addition, the plaintiff failed to establish, prima facie, that it complied with the notice requirements of the mortgage and RPAPL 1304 (see PennyMac Corp. v. Khan, 178 A.D.3d 1064, 1066, 116 N.Y.S.3d 64 ; HSBC Bank USA, N.A. v. Dubose, 175 A.D.3d 1270, 1272, 108 N.Y.S.3d 152 ). 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 Frank Cywinski and Sandra Cywinski, to strike their answer, 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., LASALLE, CONNOLLY and IANNACCI, JJ., concur.


Summaries of

Citibank v. Cywinski

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Mar 10, 2021
192 A.D.3d 754 (N.Y. App. Div. 2021)
Case details for

Citibank v. Cywinski

Case Details

Full title:Citibank, N.A., etc., respondent, v. Frank Cywinski, et al., appellants…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 10, 2021

Citations

192 A.D.3d 754 (N.Y. App. Div. 2021)
2021 N.Y. Slip Op. 1386
139 N.Y.S.3d 875