Opinion
02-24-2016
BANK OF NEW YORK MELLON, formerly known as Bank of New York, etc., respondent, v. Katarzyna VISCONTI, appellant, et al., defendants.
Adam Seiden, Mount Vernon, N.Y., for appellant. Maurice Wutscher LLP, New York, N.Y. (Thomas R. Dominczyk of counsel), for respondent.
Adam Seiden, Mount Vernon, N.Y., for appellant.
Maurice Wutscher LLP, New York, N.Y. (Thomas R. Dominczyk of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the defendant Katarzyna Visconti appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), entered February 25, 2015, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against her.
ORDERED that the order is affirmed insofar as appealed from, with costs.
"Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief" (Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it was either the holder or assignee of the underlying note at the time the action was commenced (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475, affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ; see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609 ).
Here, in support of that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendant Katarzyna Visconti, the plaintiff demonstrated, prima facie, its standing as the holder of the note by submitting the affidavit of Seth Downing, an assistant vice president for the plaintiff's loan servicer, who established that the plaintiff had physical possession of the note prior to the commencement of the action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 19 N.Y.S.3d 543 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1207, 18 N.Y.S.3d 67 ; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547 ). The plaintiff further established, prima facie, its entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of Visconti's default (see Emigrant Bank v. Larizza, 129 A.D.3d 904, 905, 13 N.Y.S.3d 129 ). In opposition, Visconti failed to raise a triable issue of fact. Visconti's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Visconti.