HSBC Bank USA, N.A. v. Congregation Khal Chasidei Skwera, Inc.

HSBC Bank USA, N.A. v Congregation Khal Chasidei Skwera, Inc. (2023 NY Slip Op 00847) HSBC Bank USA, N.A. v Congregation Khal Chasidei Skwera, Inc. 2023 NY Slip Op 00847 Decided on February 15, 2023 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 February 15, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JOSEPH A. ZAYAS DEBORAH A. DOWLING LILLIAN WAN, JJ. 2020-06987 (Index No. 506639/15) [*1]HSBC Bank USA, N.A., appellant, v Congregation Khal Chasidei Skwera, Inc., respondent, et al., defendants. Fein, Such & Crane, LLP (D.J. & J.A. Cirando, PLLC, Syracuse, NY [John A. Cirando, David P. Case, and Rebecca L. Konst], of counsel), for appellant. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated November 13, 2019. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Congregation Khal Chasidei Skwera, Inc., to strike that defendant's 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 defendant Congregation Khal Chasidei Skwera, Inc., to strike that defendant's answer, and for an order of reference are granted. On March 1, 1999, Aaron Brandwein borrowed the sum of $255,000 from Republic Consumer Lending Group, Inc. (hereinafter RCLG), secured by a mortgage on real property in Brooklyn. Brandwein was the sole borrower listed on the note and mortgage. In May 2014, Brandwein transferred title to the mortgaged property to the defendant Congregation Khal Chasidei Skwera, Inc. (hereinafter the defendant). On June 14, 2014, Brandwein died. Brandwein allegedly defaulted under the terms of the mortgage when he failed to make payments due beginning March 1, 2014. In 2015, the plaintiff commenced this action to foreclose the mortgage against the defendant, among others. A copy of the note, endorsed in blank, was annexed to the complaint. The defendant asserted lack of standing and failure to comply with RPAPL 1304 as affirmative defenses in its answer. In June 2019, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike its answer, and for an order of reference. The defendant opposed the motion. By order dated November 13, 2019, the Supreme Court, among other things, denied those branches of the plaintiff's motion. The plaintiff appeals. Here, the plaintiff established standing by annexing a copy of the original note, endorsed in blank, to the summons and complaint at the time the action was commenced (see Deutsche Bank Natl. Trust Co. v Van Alst, 207 AD3d 701, 702; Ditech Fin., LLC v Connors, 206 AD3d 694, 696). Further, the defendant, who was not a borrower, was not entitled to notice pursuant [*2]to RPAPL 1304 and could not raise that defense on Brandwein's behalf (see U.S. Bank N.A. v Lloyd-Lewis, 205 AD3d 838, 839; Hartford Funding, Ltd. v Harris, 193 AD3d 1035, 1036). Since the defendant failed to raise a triable issue of fact, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike its answer, and for an order of reference. DILLON, J.P., ZAYAS, DOWLING and WAN, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court