Opinion
2017–02170 2017–06745 Index No. 130185/13
01-16-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Wayne B. GREENBERG, etc., et al., Appellants, et al., Defendants.
Richard A. Rosenzweig, P.C., Staten Island, NY, for appellants. Shapiro DiCaro & Barak, LLC, Rochester, N.Y. (Jason P. Dionisio of counsel), for respondent.
Richard A. Rosenzweig, P.C., Staten Island, NY, for appellants.
Shapiro DiCaro & Barak, LLC, Rochester, N.Y. (Jason P. Dionisio of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the orders dated December 15, 2016, and March 21, 2017, are affirmed insofar as appealed from, with one bill of costs.
The defendants Wayne B. Greenberg and Cathy E. Greenberg (hereinafter together the defendants) executed, in favor of the plaintiff's predecessors in interest, two promissory notes, both secured by mortgages on certain residential property, as well as a consolidation, extension, modification agreement (hereinafter CEMA), consolidating the notes and mortgages, and a consolidated note evidencing the total amount of the debt following consolidation. Upon the defendants' alleged default in making payments on the debt, the plaintiff commenced the instant foreclosure action. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, and for an order of reference. The defendants cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted those branches of the plaintiff's motion and denied that branch of the defendants' cross motion.
Generally, in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see HSBC Bank USA, N.A. v. Oscar, 161 A.D.3d 1055, 1056, 78 N.Y.S.3d 428 ; US Bank N.A. v. Cohen, 156 A.D.3d 844, 845, 67 N.Y.S.3d 643 ; Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 ). However, where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, the plaintiff must also prove its standing as part of its prima facie showing (see HSBC Bank USA, N.A. v. Oscar, 161 A.D.3d at 1056, 78 N.Y.S.3d 428 ; US Bank N.A. v. Cohen, 156 A.D.3d at 845, 67 N.Y.S.3d 643 ; Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d at 1002, 16 N.Y.S.3d 459 ). "A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint" ( HSBC Bank USA, N.A. v. Oscar, 161 A.D.3d at 1056, 78 N.Y.S.3d 428 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; US Bank N.A. v. Cohen, 156 A.D.3d at 845, 67 N.Y.S.3d 643 ). Once a note is transferred, the mortgage passes as an incident to the note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; US Bank N.A. v. Cohen, 156 A.D.3d at 846, 67 N.Y.S.3d 643 ).
Here, the plaintiff established, prima facie, its standing by demonstrating that the consolidated note was in its possession when it commenced the action, as evidenced by its attachment of a copy of the consolidated note endorsed in blank to the summons and complaint (see HSBC Bank USA, N.A. v. Oscar, 161 A.D.3d at 1056, 78 N.Y.S.3d 428 ; U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 841, 69 N.Y.S.3d 656 ; US Bank N.A. v. Cohen, 156 A.D.3d at 846, 67 N.Y.S.3d 643 ; U.S. Bank N.A. v. Sabloff, 153 A.D.3d 879, 880, 60 N.Y.S.3d 343 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). Accordingly, the defendants' arguments questioning the validity of the assignments of mortgage are irrelevant to the plaintiff's standing (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). Further, where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank N.A. v. Henry, 157 A.D.3d at 841, 69 N.Y.S.3d 656 ; Wells Fargo Bank, N.A. v. Thomas, 150 A.D.3d 1312, 1313, 52 N.Y.S.3d 894 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d at 645, 37 N.Y.S.3d 286 ). Moreover, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the note, and evidence of default. In opposition, the defendants failed to raise a triable issue of fact.
Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, and for an order of reference, and to deny the defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them.
RIVERA, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.