

HSBC Bank USA, N.A. v Davenport (2019 NY Slip Op 01575)





HSBC Bank USA, N.A. v Davenport


2019 NY Slip Op 01575


Decided on March 6, 2019


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 6, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS, JJ.


2016-11985
 (Index No. 24013/08)

[*1]HSBC Bank USA, N.A., etc., respondent,
vAnthony Davenport, et al., appellants, et al., defendants.


Davis, Ndanusa, Ikhlas, Saleem, LLP, Brooklyn, NY (Mustapha Ndanusa of counsel), for appellants.
Hogan Lovells US, LLP, New York, NY (Heather R. Gushue of counsel), for respondent.

DECISION & ORDER
In an action to foreclose a mortgage, the defendants Anthony Davenport and Crystal A. Davenport appeal from an order of the Supreme Court, Kings County (Kenneth P. Sherman, J.), dated September 6, 2016. The order, insofar as appealed from, denied that branch of those defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them for failure to comply with a condition precedent.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against Anthony Davenport and Crystal A. Davenport (hereinafter together the defendants), among others, seeking to foreclose a mortgage securing a condominium unit in Brooklyn. The defendants interposed an answer to the complaint asserting, among other things, the defense that the plaintiff failed to properly mail or deliver a notice of default pursuant to the terms of the mortgage. The plaintiff subsequently moved for summary judgment and an order of reference. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the plaintiff's motion as well as the defendants' cross motion. The defendants appeal from the denial of their motion.
The defendants failed to demonstrate, prima facie, that the condition precedent to foreclosing the mortgage was not fulfilled (see CPLR 3015[a]; U.S. Bank N.A. v Sabloff, 153 AD3d 879, 881). Further, the defendants failed to eliminate triable issues of fact as to whether the plaintiff mailed a notice of default "by first class mail" to their last known address, or "actually delivered to [the] notice address if sent by other means," as required by the terms of the mortgage. Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them for failure to comply with a condition precedent.
RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


