Opinion
8435 Index 32003/16E
02-19-2019
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Plaintiff–Respondent, v. Arshad Al RASHEED, etc., Defendant–Appellant, City of New York Environmental Control Board, et al., Defendants.
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for appellant. Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for respondent.
Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Kapnick, Gesmer, Oing, JJ.
Plaintiff made a prima facie showing of its right to foreclose by producing the mortgage documents, the unpaid note, and evidence of defendant's default (see Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept. 2007], lv dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ). It established prima facie that it had standing to foreclose as holder of the note by attaching a copy of the indorsed note to the summons and complaint at the time the action was commenced (see U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 45 N.Y.S.3d 547 [2d Dept. 2017] ). It demonstrated its compliance with the notice requirements of RPAPL 1304 by submitting copies of the notices with an affidavit by an employee of the loan servicer stating, based on her review of the loan servicer's records, that the notice of default and a 90–day foreclosure notice were mailed to defendant in accordance with the provisions of the mortgage and RPAPL 1304, respectively (see HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 826–827, 64 N.Y.S.3d 38 [2d Dept. 2017] ).
In opposition, defendant failed to raise an issue of fact as to his affirmative defenses (see Red Tulip, 44 A.D.3d at 209, 842 N.Y.S.2d 1 ).