U.S. Bank N.A. v Hoffman

U.S. Bank N.A. v Hoffman 2020 NY Slip Op 04612 Decided on August 19, 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 August 19, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
RUTH C. BALKIN
LEONARD B. AUSTIN
COLLEEN D. DUFFY, JJ.
2018-14543
2018-14544
(Index No. 25955/11)

[*1]U.S. Bank National Association, etc., respondent,

v

Robert Hoffman, etc., appellant, et al., defendants.

Young Law Group, PLLC, Bohemia, NY (Justin F. Pane of counsel), for appellant.

Locke Lord LLP, New York, NY (Andrew Braunstein and R. James De Rose III of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Robert Hoffman appeals from two orders of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), both dated September 18, 2018. The first order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Robert Hoffman and for an order of reference, and denied that branch of that defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with RPAPL 1304. The second order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Robert Hoffman and for an order of reference.

ORDERED that the first order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Robert Hoffman and for an order of reference, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and so much of the second order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendants Robert Hoffman and for an order of reference is vacated; and it is further,

ORDERED that the appeal from the second order is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the first order.

The Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Robert Hoffman (hereinafter the defendant) and for an order of reference (see Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20-21; see also Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139, 1141).

We agree, however, with the Supreme Court's determination denying that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as [*2]asserted against him. The defendant's conclusory denial that the plaintiff complied with RPAPL 1304 is insufficient to establish entitlement to such relief (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 23-24).

DILLON, J.P., BALKIN, AUSTIN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court