PNC Bank, Nat'l Ass'n v. Klein

Decision Date25 February 2015
Citation125 A.D.3d 953,5 N.Y.S.3d 439,2015 N.Y. Slip Op. 01624
PartiesPNC BANK, NATIONAL ASSOCIATION, etc., respondent, v. Aaron KLEIN, appellant, et al., defendants.
CourtNew York Supreme Court — Appellate Division

Menashe & Associates, LLP, Montebello, N.Y. (Chezki Menashe of counsel), for appellant.

McCabe, Weisenberg & Conway, P.C., New Rochelle, N.Y. (Matthew Russell of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

In an action to foreclose a mortgage, the defendant Aaron Klein appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Kelly, J.), dated October 8, 2013, as, upon, in effect, reargument, adhered to its original determination in an order of the same court dated September 4, 2013, inter alia, granting the plaintiff's motion for summary judgment.

ORDERED that the order dated October 8, 2013, is affirmed insofar as appealed from, with costs.

The defendant Aaron Klein executed a note and mortgage to secure a loan of $195,000 from the original lender, National City Mortgage Co., doing business as Commonwealth United Mortgage Company. The plaintiff, PNC Bank, National Association (hereinafter PNC), successor by merger to National City Bank, successor by merger to National City Mortgage Co., doing business as Commonwealth United Mortgage Company, commenced this action to foreclose the mortgage after Klein allegedly defaulted in repayment. In his pro se answer, Klein asserted, as a defense, that PNC lacked standing. PNC moved for summary judgment and for the appointment of a referee to hear and compute the amount allegedly due to it. In an order dated September 4, 2013, the Supreme Court granted PNC's motion, but the order was silent as to whether the court had considered any opposition papers in determining PNC's motion. Klein moved, in effect, for leave to reargue and thereupon to vacate the order dated September 4, 2013, contending that he had timely filed papers in opposition to PNC's motion but that, due to an anomaly with respect to the time stamp affixed by the clerk of the court to those papers, the court had apparently not considered those papers in determining the motion. In support of his motion, Klein submitted a copy of the subject opposition papers. The Supreme Court, in effect, granted leave to reargue and determined to consider all evidence, submissions, and issues de novo, regardless of whether Klein's papers in opposition to PNC's motion had been timely submitted. Upon de novo review, the court adhered to its original...

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19 cases
  • CitiMortgage, Inc. v. Osorio
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Julio 2019
    ...134 A.D.3d 880, 880–881, 20 N.Y.S.3d 906 ; TD Bank, N.A. v. Mandia, 133 A.D.3d 590, 591, 20 N.Y.S.3d 83 ; PNC Bank, N.A. v. Klein, 125 A.D.3d 953, 955, 5 N.Y.S.3d 439 ). Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgmen......
  • OneWest Bank v. Prince
    • United States
    • New York Supreme Court — Appellate Division
    • 8 Julio 2015
    ...unpaid note, and the defendant's default, and the defendant fails to raise a triable issue of fact in opposition” (PNC Bank, N.A. v. Klein, 125 A.D.3d 953, 954, 5 N.Y.S.3d 439 ; see NationStar Mtge., LLC v. Silveri, 126 A.D.3d 864, 7 N.Y.S.3d 158 ; Wachovia Bank, N.A. v. Carcano, 106 A.D.3d......
  • U.S. Bank v. Wei Feng Zhu
    • United States
    • New York Supreme Court
    • 16 Agosto 2023
    ... ... Further, ... annexed to the motion were records referenced by Phalen ... (cf Deutsche Bank Natl. Trust Co. v ... Kirschenbaum, 187 A.D.3d 569 [1st Dept ... 2020]) as well as a limited power of ... (see LLCL §703 [a]; PNC Bank NA ... v Klein, 125 A.D.3d 953 [2d Dept 2015]) ... Moreover, Phalen averred in her affidavit that the allonge ... ...
  • CitiMortgage, Inc. v. Rockefeller
    • United States
    • New York Supreme Court — Appellate Division
    • 29 Noviembre 2017
    ...Goldberg , 134 A.D.3d 880, 881, 20 N.Y.S.3d 906 ; TD Bank, N.A. v. Mandia , 133 A.D.3d 590, 591, 20 N.Y.S.3d 83 ; PNC Bank, N.A. v. Klein , 125 A.D.3d 953, 955, 5 N.Y.S.3d 439 ; Capital One, N.A. v. Brooklyn Flatiron, LLC , 85 A.D.3d 837, 837, 925 N.Y.S.2d 350 ). In opposition, the appellan......
  • Request a trial to view additional results
2 books & journal articles
  • D. Appearance and Answers
    • United States
    • New York State Bar Association Practical Skills: Mortgage Foreclosures (NY) VI Summons and Complaint
    • Invalid date
    ...[129] CPLR 320, 2103(e).[130] See Snell v. Timmerman, 67 A.D.2d 1096, 415 N.Y.S.2d 152 (4th Dep't 1979).[131] PNC Bank, N.A. v. Klein, 125 A.D.3d 953, 954, 5 N.Y.S.3d 439 (2d Dep't 2015).[132] HSBC Bank USA, Natl. Assn. v. Bazigos, 175 A.D.3d 1506, 109 N.Y.S.3d 381 (2d Dep't 2019).[133] Id.......
  • B. Examination of Documents
    • United States
    • New York State Bar Association Practical Skills: Mortgage Foreclosures (NY) II Opening the File
    • Invalid date
    ...Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204, 887 N.Y.S.2d 615 (2d Dep't 2009).[15] Id.[16] Id.[17] PNC Bank, N.A. v. Klein, 125 A.D.3d 953, 954, 5 N.Y.S.3d 439 (2d Dep't 2015); JP Morgan Chase Bank, N.A. v. Shapiro, 104 A.D.3d 411, 959 N.Y.S.2d 918 (1st Dep't 2013).[18] HSBC Bank USA......

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