Opinion
2017–00482 Index No. 4487/07
03-06-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Michael HABER, etc., et al., Appellants, et al., Defendant.
Haber & Haber, LLP, Garden City, N.Y. (Stephen D. Haber of counsel), for appellants. Friedman Vartolo LLP, Garden City, N.Y. (Henry P. DiStefano of counsel), for respondent.
Haber & Haber, LLP, Garden City, N.Y. (Stephen D. Haber of counsel), for appellants.
Friedman Vartolo LLP, Garden City, N.Y. (Henry P. DiStefano of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Michael Haber and Laura Haber appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 23, 2016. The order granted those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference.
ORDERED that the order is reversed, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference are denied. On June 8, 2005, the defendants Michael Haber and Laura Haber (hereinafter together the defendants) executed a note in the amount of $ 413,250 in favor of WMC Mortgage Corp. (hereinafter WMC Mortgage), secured by a mortgage on residential property located in Levittown. On March 13, 2007, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage. The defendants answered and asserted, as an affirmative defense, that the plaintiff lacked standing.
"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" ( IndyMac Venture, LLC v. Amus, 164 A.D.3d 883, 884, 83 N.Y.S.3d 571 ; see Bank of N.Y. Mellon v. Selig, 165 A.D.3d 872, 86 N.Y.S.3d 543 ; Bank of N.Y. Mellon v. Aiello, 164 A.D.3d 632, 633, 83 N.Y.S.3d 135 ). In addition, where, as here, a defendant places standing in issue, the plaintiff must prove standing in order to be entitled to relief (see Bank of N.Y. Mellon v. Selig, 165 A.D.3d at 873, 86 N.Y.S.3d 543 ; Wells Fargo Bank, N.A. v. Inigo, 164 A.D.3d 545, 546, 83 N.Y.S.3d 95 ; Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118 ). A plaintiff has standing in a mortgage foreclosure action when it is either the holder or assignee of the underlying note at the time the action is commenced (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 ; Wells Fargo Bank, N.A. v. Inigo, 164 A.D.3d at 546, 83 N.Y.S.3d 95 ; Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d at 725, 46 N.Y.S.3d 185 ). "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 752, 754, 890 N.Y.S.2d 578 ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Nationstar Mtge., LLC v. Balducci, 165 A.D.3d 959, 960, 86 N.Y.S.3d 172 ; Bank of N.Y. Mellon Trust Co., N.A. v. Sukhu, 163 A.D.3d 748, 750, 83 N.Y.S.3d 70 ).
Here, the plaintiff failed to meet its prima facie burden of establishing that it had standing at the time it commenced the action (see Wells Fargo Bank, N.A. v. Talley, 153 A.D.3d 583, 584, 59 N.Y.S.3d 743 ; Arch Bay Holdings, LLC v. Albanese, 146 A.D.3d 849, 852, 45 N.Y.S.3d 506 ). The affidavit of Patrick Pittman, an employee of Select Portfolio Servicing, Inc., the plaintiff's servicer, failed to lay a proper foundation under the business records exception to the hearsay rule to support his assertion that the note was physically transferred to the plaintiff prior to commencement of the action (see Bank of N.Y. Mellon v. Selig, 165 A.D.3d at 874, 86 N.Y.S.3d 543 ; OneWest Bank, FSB v. Berino, 158 A.D.3d 811, 812–813, 71 N.Y.S.3d 563 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 685, 37 N.Y.S.3d 25 ).
Since the plaintiff failed to meet its prima facie burden for summary judgment, those branches of its motion which were for summary judgment on the complaint and for an order of reference should have been denied without regard to the sufficiency of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).In light of our determination, we need not reach the defendants' remaining contentions.
BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.