Wells Fargo Bank, Nat'l Ass'n v. Malek

• Decision Date: 24 November 2021
• Docket Number: 2018–14408,Index No. 511199/15
• Citation: 199 A.D.3d 1040,157 N.Y.S.3d 99
• Parties: WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent, v. Joshua MALEK, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1040
157 N.Y.S.3d 99

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent,
v.
Joshua MALEK, appellant, et al., defendants.

2018–14408
Index No. 511199/15

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

Argued—October 26, 2021
November 24, 2021

Wolf & Associates, PLLC, Brooklyn, NY (Martin Wolf of counsel), for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Charles Jeanfreau of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

157 N.Y.S.3d 100

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Joshua Malek appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated August 6, 2018. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, which had been denied by an order of the same court dated July 26, 2017, and, upon renewal, in effect, vacated so much of the order dated July 26, 2017, as denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon granted those branches of the plaintiff's prior motion.

ORDERED that the order dated August 6, 2018, is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for leave to renew those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant Joshua Malek and for an order of reference is denied, and so much of the order dated July 26, 2017, as denied those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant Joshua Malek and for an order of reference is reinstated.

On June 1, 2005, the defendant Joshua Malek (hereinafter the defendant) executed a mortgage in favor of Fremont Investment & Loan to secure a promissory note executed on the same day in the principal sum of $720,000. In September 2015, the plaintiff commenced this action to foreclose the subject mortgage, alleging that the defendant defaulted on the note by failing to make the payment due on September 1, 2009, and all payments due thereafter. The defendant interposed an answer asserting various affirmative defenses, including lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as...