Bank of N.Y. Mellon v Toro

Bank of N.Y. Mellon v Toro 2020 NY Slip Op 04820 Decided on September 2, 2020 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 September 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.
2018-00772
(Index No. 57219/16)

[*1]Bank of New York Mellon, etc., respondent,

v

Julio Toro, et al., appellants, et al., defendants.

Carl E. Person, New York, NY (Giancarlo Malinconico of counsel), for appellants.

Sandelands Eyet LLP, New York, NY (William C. Sandelands of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Julio Toro and Diana Cuebas appeal from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), entered November 1, 2017. 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 the defendants Julio Toro and Diana Cuebas, to strike their answer, affirmative defenses, and counterclaims, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff established, prima facie, that it was the holder of the underlying note at the commencement of the action by attaching the consolidated note, endorsed in blank, to the summons and complaint when it commenced the action (see U.S. Bank N.A. v Ahmed, 174 AD3d 661, 664). In opposition, the defendants Julio Toro and Diana Cuebas (hereinafter together the defendants) failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court's determination granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, affirmative defenses, and counterclaims, and for an order of reference.

LEVENTHAL, J.P., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court