Opinion
2016–01000 Index No. 506804/13
08-15-2018
BANK OF NEW YORK MELLON, etc., appellant, v. Virginia M. AIELLO, etc., respondent, et al., defendants.
Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.
Davidson Fink, LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (David B. Vaughan, J.), dated October 27, 2015. The order denied the plaintiff's motion for summary judgment on the complaint, for an order of reference, and to amend the caption by substituting Dominick Aiello as a party defendant in place of the defendants sued as "John Doe" and "Mary Doe."
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint, for an order of reference, and to amend the caption by substituting Dominick Aiello as a party defendant in place of the defendants sued as "John Doe" and "Mary Doe" is granted.
The plaintiff commenced this mortgage foreclosure action against, among others, Virginia M. Aiello (hereinafter the defendant). The defendant interposed an answer asserting various affirmative defenses, including lack of standing. Thereafter, the plaintiff moved for summary judgment on the complaint, for an order of reference, and to amend the caption by substituting Dominick Aiello as a party defendant in place of the defendants sued as "John Doe" and "Mary Doe." The defendant opposed the motion, arguing, in conclusory fashion, that the plaintiff failed to eliminate triable issues of fact. The Supreme Court denied the motion on the ground that the plaintiff failed to demonstrate compliance with RPAPL 1304.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 [internal quotation marks omitted]; see HSBC Bank, USA v. Hagerman, 130 A.D.3d 683, 683–684, 11 N.Y.S.3d 865 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Additionally, where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendants, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d at 1002, 16 N.Y.S.3d 459 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d at 689, 986 N.Y.S.2d 843 ).
Here, in support of its motion, the plaintiff produced the mortgage, the unpaid note, and evidence of default (see Arch Bay Holdings LLC v. Albanese, 146 A.D.3d 849, 45 N.Y.S.3d 506 ; Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d at 1002, 16 N.Y.S.3d 459 ; HSBC Bank, USA v. Hagerman, 130 A.D.3d at 683–684, 11 N.Y.S.3d 865 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d at 689, 986 N.Y.S.2d 843 ). The plaintiff also established, prima facie, that it had standing to prosecute this action by virtue of its possession of the note at the time the action was commenced (see generally Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 34 N.E.3d 363 ), and that it had complied with the notice requirements of RPAPL 1304 (see Citimortgage, Inc. v. Espinal, 134 A.D.3d 876, 879, 23 N.Y.S.3d 251 ; cf. Cenlar, FSB v. Censor, 139 A.D.3d 781, 783, 32 N.Y.S.3d 228 ). Furthermore, the plaintiff demonstrated that the caption should be amended (see CPLR 1024 ; Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 568, 996 N.Y.S.2d 130 ).
The defendant's submission of an attorney's affirmation containing only general denials was insufficient to raise a triable issue of fact in opposition to the plaintiff's prima facie showing (cf. Cenlar, FSB v. Censor, 139 A.D.3d at 783, 32 N.Y.S.3d 228 ). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint, an order of reference, and to amend the caption.
DILLON, J.P., LEVENTHAL, MILLER and DUFFY, JJ., concur.