PennyMac Holdings, LLC v. Tomanelli, 2015-09738, 2015-09781, Index No. 60258/14.

Decision Date04 May 2016
Docket Number2015-09738, 2015-09781, Index No. 60258/14.
Citation139 A.D.3d 688,2016 N.Y. Slip Op. 03482,32 N.Y.S.3d 181
PartiesPENNYMAC HOLDINGS, LLC, respondent, v. Christopher TOMANELLI, also known as Christopher M. Tomanelli, appellant, et al., defendants.
CourtNew York Supreme Court — Appellate Division

Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for appellant.

Fein, Such & Crane, LLP (Blank Rome LLP, New York, N.Y. [Jonathan M. Robbin ], of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

In an action to foreclose a mortgage, the defendant Christopher Tomanelli, also known as Christopher M. Tomanelli, appeals (1) from an order of the Supreme Court, Suffolk County (Whelan, J.), dated September 10, 2015, and (2), as limited by his brief, from so much of an amended order of the same court dated September 23, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and to appoint a referee to compute the amount due to the plaintiff.

ORDERED that the appeal from the order dated September 10, 2015, is dismissed, as that order was superseded by the amended order dated September 23, 2015; and it is further,

ORDERED that the amended order is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default (see Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902 ). Here, the plaintiff sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and the affidavit of Clifford Giles, a “Default Specialist III” of the plaintiff's loan servicer, attesting to the default of the defendant Christopher Tomanelli, also known as Christopher M. Tomanelli (hereinafter the defendant) (see HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1207, 18 N.Y.S.3d 67 ; Deutsche Bank Natl. Trust Co. v. Monica, 131 A.D.3d 737, 738, 15 N.Y.S.3d 863 ; HSBC Bank USA, N.A. v. Sage, 112 A.D.3d 1126, 1127, 977 N.Y.S.2d 446 ; see also Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118 ).

In opposition, the defendant failed to raise a triable issue...

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18 cases
  • PennyMac, Corp. v. Darren DiPrima
    • United States
    • New York Supreme Court
    • November 18, 2016
    ...it maintains in the regular course of its business as servicer of the subject mortgage loan (see Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181 [2d Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 28 N.Y.S.3d 444 [2d Dept.2016] ; Deutsche Bank N......
  • Bank of N.Y. v. Morga
    • United States
    • New York Supreme Court
    • March 9, 2017
    ...foreclosing plaintiff's prima facie case on records it maintains in the regular course of business (see Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181 [2d Dept.2016] ; Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 28 N.Y.S.3d 444 [2d Dept.2016] ; Deutsche......
  • Wilmington Sav. Fund Soc'y, FSB v. DeCanio, 600554/15.
    • United States
    • New York Supreme Court
    • May 3, 2017
    ...subject mortgage loan (see Central Mtge. Co. v. Davis, ––– A.D.3d ––––, 2017 WL 1394282[2d Dept 2017] ; Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 NYS3d 181 [2d Dept 2016] ; Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 28 NYS3d 444 [2d Dept 2016] ; Deutsche Bank ......
  • Deutsche Bank Nat'l Trust Co. v. Holler
    • United States
    • New York Supreme Court
    • August 3, 2017
    ...plaintiff's representative is legally sufficient and comports with the requirements of CPLR 3212 (see, Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 NYS3d 181 [2d Dept 2016] ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118 [2d Dept 2014] ; see also, Deutsche Ban......
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