Opinion
11440 11440A Index 850263/13
04-30-2020
B AND H FLORIDA NOTES LLC, Plaintiff–Respondent–Appellant, v. Alexander ASHKENAZI, et al., Defendants, Amit Louzon, Defendant–Appellant–Respondent.
McLaughlin & Stern, LLP, Great Neck (John M. Brickman of counsel), for appellant-respondent. Marc E. Scollar, Staten Island, for respondent-appellant.
McLaughlin & Stern, LLP, Great Neck (John M. Brickman of counsel), for appellant-respondent.
Marc E. Scollar, Staten Island, for respondent-appellant.
Friedman, J.P., Kapnick, Webber, Oing, JJ.
Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered May 29, 2019, dismissing the action without prejudice, unanimously affirmed, without costs. Appeals from order, same court and Justice, entered April 17, 2019, which vacated an order entered April 9, 2019, after a nonjury trial, dismissing the action with prejudice, and dismissed the action without prejudice, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. The trial court correctly determined after a nonjury trial that plaintiff failed to establish that Wells Fargo Bank, N.A., which commenced this foreclosure action and was succeeded by plaintiff, had possession of the note at the time the action was commenced (see B & H Florida Notes LLC v. Ashkenazi, 149 A.D.3d 401, 402, 51 N.Y.S.3d 59 [1st Dept. 2017] ). The trial evidence establishes, at most, that the note was in the possession of Grand Pacific Holdings Corp. at that time, and there is no evidence showing that, as the complaint alleges, Grand Pacific Holdings was Wells Fargo's subservicer or that there was any other connection between the two entities (see U.S. Bank N.A. v. Ezugwu, 162 A.D.3d 613, 614, 80 N.Y.S.3d 35 [1st Dept. 2018] ; U.S. Bank N.A. v. Brjimohan, 153 A.D.3d 1164, 1165, 62 N.Y.S.3d 43 [1st Dept. 2017] ; Wilmington Trust Co. v. Walker, 149 A.D.3d 409, 410, 51 N.Y.S.3d 64 [1st Dept. 2017] ).
Defendant Amit Louzon argues correctly that the court's vacatur of its April 9, 2019 order dismissing the action with prejudice and issuance of an order dismissing the action without prejudice was procedurally improper, because the substitution of "without prejudice" for "with prejudice" is a substantive revision (see CPLR 5019[a] ; Johnson v. Societe Generale S.A., 94 A.D.3d 663, 664, 943 N.Y.S.2d 74 [1st Dept. 2012] ). However, on appeal from the judgment (which brings up for review the order [ CPLR 5501 ] ), the parties dispute whether the action should be dismissed with or without prejudice, and we find that the action was correctly dismissed without prejudice, because the dismissal is based on lack of standing, not on the merits ( Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13–14, 862 N.Y.S.2d 316, 892 N.E.2d 380 [2008] ; Wells Fargo Bank, N.A. v. Ndiaye, 146 A.D.3d 684, 44 N.Y.S.3d 908 [1st Dept. 2017] ).