Citibank, N.A. v. Cywinski

Citibank, N.A. v Cywinski (2021 NY Slip Op 01386) Citibank, N.A. v Cywinski 2021 NY Slip Op 01386 Decided on March 10, 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 March 10, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. HECTOR D. LASALLE FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ. 2018-11362 (Index No. 7573/12) [*1]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, NY [Ryan Sirianni and Patrick G. Broderick], of counsel), for respondent. 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 AD3d 982, 984-985; Wells Fargo Bank, N.A. v Meisels, 177 AD3d 812, 814-815). 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 AD3d 1064, 1066; HSBC Bank USA, N.A. v Dubose, 175 AD3d 1270, 1272). 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 NY2d 851, 853). DILLON, J.P., LASALLE, CONNOLLY and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court