Deutsche Bank Natl. Trust Co. v. Kavovit

Deutsche Bank Natl. Trust Co. v Kavovit (2023 NY Slip Op 05249)

Deutsche Bank Natl. Trust Co. v Kavovit

2023 NY Slip Op 05249

Decided on October 18, 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 October 18, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
VALERIE BRATHWAITE NELSON
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.
2021-06271
(Index No. 611956/18)

Charles Wallshein Esq. PLLC, Melville, NY, for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Barbara R. Kavovit appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated August 2, 2021. The order, insofar as appealed from, denied that defendant's motion to dismiss the amended complaint insofar as asserted against her for failure to comply with RPAPL 1304.

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

In this mortgage foreclosure action, the Supreme Court granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the defendant Barbara R. Kavovit (hereinafter the defendant), to strike the affirmative defenses insofar as asserted by the defendant, and for an order of reference. Subsequently, the defendant moved to dismiss the amended complaint insofar as asserted against her for failure to comply with RPAPL 1304. In an order dated August 2, 2021, the court, inter alia, denied the defendant's motion. The defendant appeals.

The Supreme Court properly denied the defendant's motion. For reasons set forth in a related appeal (see Deutsche Bank Natl. Trust Co. v Kavovit, ___ AD3d ___ [Appellate Division Docket No. 2021-01921; decided herewith]), the defendant was not entitled to notice pursuant to RPAPL 1304 (cf. Bank of N.Y. Mellon v Forman, 176 AD3d 663, 665-666).

DILLON, J.P., BRATHWAITE NELSON, MILLER and MALTESE, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court