Opinion
No. 2019-05698 Index No. 609493/16
06-15-2022
U.S. Bank National Association, etc., respondent, v. Kahn Property Owner, LLC, et al., appellants, et al., defendants (and a third-party action).
Law Offices of Joshua L. Dratel, P.C., New York, NY (Pollack Pollack Isaac & DeCicco, LLP [Brian J. Isaac], of counsel), for appellants. Venable LLP, New York, NY (Rishi Kapoor of counsel), for respondent.
Law Offices of Joshua L. Dratel, P.C., New York, NY (Pollack Pollack Isaac & DeCicco, LLP [Brian J. Isaac], of counsel), for appellants.
Venable LLP, New York, NY (Rishi Kapoor of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. ANGELA G. IANNACCI PAUL WOOTEN JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action, inter alia, to foreclose a mortgage, the defendants Kahn Property Owner, LLC, Gary Melius, Oheka Catering I, LLC, and Oheka Management, LLC, appeal from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated March 25, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the cause of action to foreclose the mortgage insofar as asserted against those defendants 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 cause of action to foreclose the mortgage insofar as asserted against the defendants Kahn Property Owner, LLC, Gary Melius, Oheka Catering I, LLC, and Oheka Management, LLC, and for an order of reference are denied.
In June 2016, the plaintiff commenced this action, inter alia, to foreclose a mortgage against the defendants Kahn Property Owner, LLC, Gary Melius, Oheka Catering I, LLC, and Oheka Management, LLC (hereinafter collectively the defendants), among others. After the defendants answered, the plaintiff moved, inter alia, for summary judgment on the cause of action to foreclose the mortgage insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion. By order dated March 25, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion, and the defendants appeal.
To establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default (see Bank of N.Y. Mellon v Pigott, 200 A.D.3d 633, 635; Nationstar Mtge., LLC v Shivers, 179 A.D.3d 931, 932). The plaintiff has the burden of establishing, by evidence in admissible form, its prima facie entitlement to judgment as a matter of law (see Bank of N.Y. Mellon v DeLoney, 197 A.D.3d 548, 549; US Bank N.A. v Hunte, 176 A.D.3d 894, 896).
Here, the plaintiff failed to establish, prima facie, the defendants' default in payment. In support of its motion, the plaintiff submitted an affidavit of an employee of its loan servicer who averred that he was personally familiar with the underlying mortgage loan and payment history based upon his review of certain business records maintained by the loan servicer and the plaintiff. However, the affiant failed to submit any business record substantiating the alleged default (see 2010-3 SFR Venture, LLC v Schiavoni, 199 A.D.3d 739, 741; USBank N.A. v Haliotis, 185 A.D.3d 756, 759; Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197, 205-206). "Conclusory affidavits lacking a factual basis are without evidentiary value" (USBank N.A. v Haliotis, 185 A.D.3d at 759; see Citibank, N.A. v Yanling Wu, 199 A.D.3d 48, 58). Even assuming that the subject affidavit established a sufficient foundation for the records relied upon, "it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Bank of N.Y. Mellon v Gordon, 171 A.D.3d at 205). Accordingly, the affiant's assertions regarding the defendants' default, without the business records upon which he relied in making those assertions, constituted inadmissible hearsay (see Citibank, N.A. v Yanling Wu, 199 A.D.3d at 58; Bank of N.Y. Mellon v DeLoney, 197 A.D.3d at 550; Bank of Am., N.A. v Huertas, 195 A.D.3d 891, 893; Bank of N.Y. Mellon v Gordon, 171 A.D.3d at 208-209). Although the plaintiff submitted additional documentation with its reply papers, "[a] party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply, and generally, evidence submitted for the first time in reply papers should be disregarded by the court" (Deutsche Bank Natl. Trust Co. v Adlerstein, 171 A.D.3d 868, 870 [internal quotation marks omitted]; see Citibank, N.A. v Yanling Wu, 199 A.D.3d at 58).
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the cause of action to foreclose the mortgage insofar as asserted against the defendants and for an order of reference without regard to the sufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Bank of Am., N.A. v Huertas, 195 A.D.3d at 891).
The defendants' remaining contentions either are not properly before this Court or need not be reached in light of our determination.
BRATHWAITE NELSON, J.P., IANNACCI, WOOTEN and ZAYAS, JJ., concur.