Opinion
No. 2023-05726 Index No. 610309/19
09-11-2024
U.S. Bank, National Association, etc., respondent, v. Gwenn J. Goichman, etc., appellant, et al., defendants.
McCalla, Raymner, Leibert, Pierce, LLC, New York, NY (Harold L. Kofman of counsel), for respondent. Sheldon Farber, Lawrence, NY, for appellant.
McCalla, Raymner, Leibert, Pierce, LLC, New York, NY (Harold L. Kofman of counsel), for respondent.
Sheldon Farber, Lawrence, NY, for appellant.
ANGELA G. IANNACCI, J.P. JOSEPH J. MALTESE WILLIAM G. FORD CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Gwenn J. Goichman appeals from an order of the Supreme Court, Suffolk County (S. Betsy Heckman Torres, J.), entered March 30, 2023. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Gwenn J. Goichman, to strike that defendant's answer, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendant Gwenn J. Goichman (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Brookhaven. The defendant interposed an answer asserting various affirmative defenses, including lack of standing. The plaintiff then moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant opposed the motion. By order entered March 30, 2023, the Supreme Court, among other things, granted those branches of the plaintiff's motion and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The defendant appeals.
A plaintiff establishes its standing to maintain a mortgage foreclosure action by demonstrating that it is 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; Deutsche Bank Natl. Trust Co. v Schmelzinger, 189 A.D.3d 1173, 1174). The plaintiff meets this burden by submitting proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action (see UCC 1-201 [b][21][A]; 3-202[1]; 3-204; Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d at 361; Deutsche Bank Natl. Trust Co. v Brewton, 142 A.D.3d 683, 684). Here, the plaintiff established, prima facie, that it had standing to commence this action by submitting in support of its motion a copy of the note, endorsed in blank, that was annexed to the complaint at the time the action was commenced (see U.S. Bank N.A. v Lloyd-Lewis, 205 A.D.3d 838, 839; HSBC Bank USA, N.A. v Desir, 188 A.D.3d 657, 658; U.S. Bank N.A. v Offley, 170 A.D.3d 1240, 1241).
In opposition, the defendant failed to raise a triable issue of fact. "'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'" (U.S. Bank N.A. v Calabro, 175 A.D.3d 1451, 1452, quoting U.S. Bank N.A. v Fisher, 169 A.D.3d 1089, 1091 [alterations omitted]; see Wells Fargo Bank, N.A. v Davis, 181 A.D.3d 890, 892).
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.
IANNACCI, J.P., MALTESE, FORD and LANDICINO, JJ., concur.