Opinion
2017–08042 Index No. 135931/14
01-09-2019
U.S. BANK TRUST, N.A., etc., Respondent, v. John S. O'DRISCOLL, etc., Appellant, et al., Defendants.
Robert E. Brown, P.C., Staten Island, NY, for appellant. Day Pitney LLP, New York, N.Y. (Rachel G. Packer and Alfred W.J. Marks of counsel, New York), for respondent.
Robert E. Brown, P.C., Staten Island, NY, for appellant.
Day Pitney LLP, New York, N.Y. (Rachel G. Packer and Alfred W.J. Marks of counsel, New York), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2014, the plaintiff commenced this action to foreclose a mortgage against the defendant John S. O'Driscoll, also known as John O'Driscoll, among others. The plaintiff attached the promissory note at issue to the summons and complaint. The note was accompanied by an "allonge to note," in which the original lender, Household Finance Realty Corporation of New York, endorsed the note in blank.
In December 2015, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against O'Driscoll. O'Driscoll opposed the motion, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him on the ground that the plaintiff lacked standing. At a hearing to determine whether the plaintiff had standing to prosecute this action, the plaintiff presented the testimony of Jamar Harris, a default servicing officer for Caliber Home Loans (hereinafter Caliber), the servicer of the loan at issue. Harris testified that the plaintiff obtained the original note on December 3, 2013. Specifically, he testified that the original note had been sent to Wells Fargo as custodian for the plaintiff on that date.
In a decision dated March 30, 2017, a Court Attorney Referee determined that the plaintiff had established standing. In the order appealed from, the Supreme Court granted the subject branch of the plaintiff's motion, and denied O'Driscoll's cross motion.
A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 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" ( Dyer Trust 2012–1 v. Global World Realty,Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ). "[A]n assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery" ( Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532 ; 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 ). Testimony from the loan's servicer may be used to establish standing (see U.S. Bank, N.A. v. Godwin, 137 A.D.3d 1260, 1261–1262, 28 N.Y.S.3d 450 ).
We agree with the Supreme Court's determination that the plaintiff had submitted evidence sufficient to establish standing (see Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 862–863, 45 N.Y.S.3d 189 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ; cf. HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 985, 15 N.Y.S.3d 117 ). In opposition, Driscoll failed to raise a triable issue of fact. Accordingly, we agree with the court's determination granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against O'Driscoll, and for the same reasons, denying O'Driscoll's cross motion to dismiss the complaint insofar as asserted against him.
DILLON, J.P., BALKIN, MILLER and IANNACCI, JJ., concur.