HSBC Bank USA, Nat'l Ass'n v. Kading

• Decision Date: 06 April 2022
• Docket Number: 2019–03732,Index No. 135030/16
• Parties: HSBC BANK USA, NATIONAL ASSOCIATION, etc., appellant, v. Kevin KADING, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 649
165 N.Y.S.3d 595

HSBC BANK USA, NATIONAL ASSOCIATION, etc., appellant,
v.
Kevin KADING, et al., respondents, et al., defendants.

2019–03732
Index No. 135030/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 11, 2022
April 6, 2022

165 N.Y.S.3d 596

Duane Morris LLP, New York, NY (Brett L. Messinger of counsel), for appellant.

Fred L. Seeman, New York, NY (Peter Kirwin and Ryan Marrano of counsel), for respondents.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

204 A.D.3d 650

In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated February 11, 2019. The order, insofar as appealed from, granted the cross motion of the defendants Kevin Kading and Laurette M. Kading for summary judgment dismissing the complaint insofar as asserted against them and, in effect, denied, as academic, those branches of the plaintiff's

165 N.Y.S.3d 597

motion which were for summary judgment on the first and second causes of action insofar as asserted against the defendants Kevin Kading and Laurette M. Kading, to strike those defendants’ answer, and for an order of reference.

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, the cross motion of the defendants Kevin Kading and Laurette M. Kading for summary judgment dismissing the complaint insofar as asserted against them is denied, and the matter is remitted to the Supreme Court, Richmond County, for a determination on the merits of those branches of the plaintiff's motion which were for summary judgment on the first and second causes of action insofar as asserted against the defendants Kevin Kading and Laurette M. Kading, to strike those defendants’ answer, and for an order of reference in accordance herewith.

In May 2003, the defendant Kevin Kading borrowed the sum of $588,000, and the loan was secured by a mortgage on certain property in Staten Island executed by Kevin Kading and the defendant Laurette M. Kading (hereinafter together the defendants). The mortgage was thereafter assigned to the plaintiff, and Kevin Kading executed two loan modification agreements. In January 2010, the plaintiff commenced an action against, among others, the defendants to foreclose the mortgage (hereinafter the 2010 action). Thereafter, in November 2014, Kevin Kading executed another loan modification...