Deutsche Bank Trust Co. Ams. v Graham, 2020 NY Slip Op 00104 [179 AD3d 641]

January 8, 2020

Appellate Division, Second Department

[*1]

Deutsche Bank Trust Company Americas, Appellant,

v

Carlton Graham, Respondent, et al., Defendants.

Liebler, Gonzalez & Portuondo, New York, NY (Jacob E. Mitrani of counsel), for appellant.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered September 21, 2017. The order denied the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Carlton Graham and for an order of reference, and granted that branch of the cross motion of the defendant Carlton Graham which was for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendant Carlton Graham which was for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. Accordingly, we agree with the Supreme Court’s denial of the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Carlton Graham and for an order of reference, regardless of the sufficiency of the opposing papers ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]). Nevertheless, for reasons set forth in Citibank, N.A. v Conti-Scheurer (172 AD3d 17 [2019]), the court should have denied that branch of the cross motion of the defendant Carlton Graham which was for summary judgment dismissing the complaint insofar as asserted against him. Rivera, J.P., Maltese, Brathwaite Nelson and Iannacci, JJ., concur..