

HSBC Bank USA, N.A. v Pichardo (2020 NY Slip Op 01150)





HSBC Bank USA, N.A. v Pichardo


2020 NY Slip Op 01150


Decided on February 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 February 19, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
FRANCESCA E. CONNOLLY, JJ.


2018-10601
2018-13851
 (Index No. 34910/15)

[*1]HSBC Bank USA, N.A., appellant, 
vPedro Pichardo, etc., et al., respondents, et al., defendants.


Phillips Lytle LLP, Buffalo, NY (Preston L. Zarlock, Erin E. Connare, and McCabe, Weisberg & Conway, LLC [Heino Muller and Jamie Krapf], of counsel), for appellant.
The Lauterbach Law Firm, New City, NY (Jennifer L. Fredeman of counsel), for respondents.

DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated July 12, 2018, and (2) an order of the same court dated November 13, 2018. The order dated July 12, 2018, denied the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendants Pedro Pichardo and Luz Pichardo and for an order of reference, and granted the cross motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them. The order dated November 13, 2018, denied the plaintiff's motion for leave to reargue its prior motion for summary judgment on the complaint insofar as asserted against the defendants Pedro Pichardo and Luz Pichardo and for an order of reference and its opposition to those defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the appeal from the order dated November 13, 2018, is dismissed, without costs or disbursements; and it is further,
ORDERED that the order dated July 12, 2018, is modified, on the law, by deleting the provision thereof granting the cross motion of the defendants Pedro Pichardo and Luz Pichardo for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying the cross motion; as so modified, the order dated July 12, 2018, is affirmed, without costs or disbursements.
The appeal from the order dated November 13, 2018, must be dismissed, as no appeal lies from an order denying reargument (see Viola v Blanco, 1 AD3d 506, 507).
We agree with the Supreme Court's determination that the evidence proffered by the plaintiff in support of its motion for summary judgment on the complaint insofar as asserted against the defendants Pedro Pichardo and Luz Pichardo (hereinafter together the defendants) and for an order of reference was insufficient to establish, prima facie, that it had standing to commence this action (see Deutsche Bank Natl. Trust Co. v Anderson, 161 AD3d 1043, 1044-1045; see also Bank [*2]of N.Y. Mellon v Hardt, 173 AD3d 1125, 1127). Accordingly, we agree with the court's determination to deny the plaintiff's motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
However, we disagree with the Supreme Court's determination to grant the defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them, as they failed to establish, prima facie, that the plaintiff did not have standing to commence this action (see DLJ Mtge. Capital, Inc. v Pittman, 150 AD3d 818, 820). Accordingly, the defendants' cross motion should have been denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
BALKIN, J.P., CHAMBERS, COHEN and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


