Opinion
7891 7892 Index 850023/16
12-13-2018
AS HELIOS LLC, Plaintiff–Respondent, v. Pushpa CHAUHAN, et al., Defendants–Appellants, M & T Bank, etc., et al., Defendants.
Lanin Law P.C., New York (Scott L. Lanin of counsel), for appellants. Friedman Vartolo LLP, New York (Chad Harlan of counsel), for respondent.
Lanin Law P.C., New York (Scott L. Lanin of counsel), for appellants.
Friedman Vartolo LLP, New York (Chad Harlan of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Tom, Webber, Gesmer, JJ.
Appeal from orders, Supreme Court, New York County (Carol Edmead, J.), entered on or about April 13, 2017, which granted plaintiffs' summary judgment motion for foreclosure, dismissing defendants' affirmative defenses and counterclaims, and appointing a referee to compute the amount due plaintiff, deemed appeal from judgment, same court and Justice, entered July 24, 2017 ( CPLR 5501[c] ), and, so considered, said judgment unanimously reversed, without costs, on the law, the judgment vacated, and plaintiffs' motion denied.
The borrower raised a meritorious standing defense based on questions as to the sufficiency of the content of the conclusory lost note affidavit, which does not state that a thorough and diligent search was made based on a review of the business records or anything else, does not state that any search was made or by whom, and does nothing to indicate when approximately the note was lost (see U.S. Bank N.A. v. Richards, 155 A.D.3d 522, 65 N.Y.S.3d 178 [1st Dept. 2017] ; Deutsche Bank Natl. Trust Co. v. Anderson, 161 A.D.3d 1043, 79 N.Y.S.3d 42 [2d Dept. 2018] ).
The borrower also raised a plausible notice defense regarding plaintiff's service of the requisite 90–day notice under RPAPL 1304 (see HSBC Bank USA v. Rice, 155 A.D.3d 443, 63 N.Y.S.3d 382 [1st Dept. 2017] ).