HSBC Bank USA, N.A. v Baychu, 2020 NY Slip Op 01911 [181 AD3d 797]

March 18, 2020

Appellate Division, Second Department

[*1]

HSBC Bank USA, National Association, as Trustee for Mortgage Pass-Through Certificates, MANA Series 2007-OAR2, Respondent,

v

Alfred Baychu et al., Appellants, et al., Defendants.

Alice A. Nicholson, Brooklyn, NY, for appellants.

Shapiro, DiCaro & Barak, LLC, Rochester, NY (Austin T. Shufelt of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Alfred Baychu and Leeta Baychu appeal from an order of the Supreme Court, Queens County (Ernest F. Hart, J.), dated July 10, 2017. The order, insofar as appealed from, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Alfred Baychu and Leeta Baychu and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Alfred Baychu and Leeta Baychu and for an order of reference are denied.

For reasons set forth in Bank of N.Y. Mellon v Gordon (171 AD3d 197 , 208-209 [2019]), we find that the plaintiff failed to establish, prima facie, that the defendants Alfred Baychu and Leeta Baychu (hereinafter together the defendants) defaulted in the repayment of the subject loan. Accordingly, the Supreme Court should have denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants 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]). Dillon, J.P., Austin, Hinds-Radix and Christopher, JJ., concur..