Opinion
Submitted June 22, 1999
October 4, 1999
Lester Fontanetta, P.C., Garden City, N.Y. (Melissa Levine of counsel), for appellants.
Schwall Becker, New City, N.Y. (Kendra Golden of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
In an action to foreclose a mortgage, the defendants Joshua Joffe and Debbie Joffe appeal from an order of the Supreme Court, Nassau County (Driscoll, J.), dated March 18, 1998, which, inter alia, granted the plaintiff's motion for summary judgment on the complaint.
ORDERED that the order is reversed, with costs, and the plaintiff's motion is denied.
In support of its motion for summary judgment, the plaintiff Citibank, N.A. (hereinafter Citibank) relied upon an affirmation of its outside counsel, the complaint verified by the same counsel, and an affidavit of an employee of its mortgage servicing company. The affidavit by the employee did not state that the appellants had defaulted upon their obligations under the note and mortgage, nor did it address the appellant's contention that Citibank had waived its right to accelerate the outstanding balance by accepting two monthly mortgage payments. Since Citibank's counsel lacked personal knowledge, inter alia, of these facts, Citibank failed to establish its prima facie entitlement to judgment as a matter of law, and we therefore need not reach the question of the sufficiency of the evidence presented in opposition to the motion (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557; Siagkris v. K E Mech., 248 A.D.2d 458; Speirs v. Not Fade Away Tie Dye Co., 236 A.D.2d 531).
THOMPSON, J.P., FRIEDMANN, SCHMIDT, and SMITH, JJ., concur.