Opinion
2017-07513 2019-07737 Index No. 14776/09
12-02-2020
WELLS FARGO BANK, N.A., respondent, v. Moshe ATEDGI, appellant, et al., defendants.
Joseph A. Altman, P.C., Bronx, NY, for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP (Reed Smith LLP, New York, NY [Andrew B. Messite and Michael V. Margarella ], of counsel), for respondent.
Joseph A. Altman, P.C., Bronx, NY, for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP (Reed Smith LLP, New York, NY [Andrew B. Messite and Michael V. Margarella ], of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, BETSY BARROS, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Moshe Atedgi appeals from (1) an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered June 7, 2017, and (2) an order and judgment of foreclosure and sale (one paper) of the same court (Morgan Cohanim Lancman, J.), entered November 26, 2018. The order granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant and denied that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against him. The order and judgment of foreclosure and sale, inter alia, is in favor of the plaintiff and against the defendant Moshe Atedgi, directing the sale of the subject premises.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, the plaintiff's motion, inter alia, for summary judgment on the complaint is denied, and the order dated May 30, 2017, is modified accordingly.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).
Where, as here, the issue of standing is raised by a defendant, "a plaintiff must establish its standing to be entitled to relief" ( EMC Mtge. Corp. v. Tinari, 169 A.D.3d 1006, 1007, 94 N.Y.S.3d 593 ; see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note" ( EMC Mtge. Corp. v. Tinari, 169 A.D.3d at 1007, 94 N.Y.S.3d 593 ; 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 ).
In support of its motion, inter alia, for summary judgment on the complaint, the plaintiff submitted the affidavit of Jeremiah Herberg, the plaintiff's Vice President of Loan Documentation, who averred, in relevant part, that "[i]n connection with making this affidavit ... [he] acquired personal knowledge of ... the matters stated herein by examining the business records relating to the subject mortgage loan and/or confirm the information to the best of my knowledge, information and belief." He averred that "[u]pon confirmation from [the plaintiff's] Document Custody Department, [the plaintiff] was in possession of the Promissory Note until it was shipped [to the plaintiff's attorneys] on or about March 14, 2012." He further "confirm[ed] that" the plaintiff "had possession of the Promissory Note on or before June 4, 2009, the date that this action was commenced."
"Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business, it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 205, 97 N.Y.S.3d 286 [citation and internal quotation marks omitted]; see Great Am. Ins. Co. v. Auto Mkt. of Jamaica, N.Y., 133 A.D.3d 631, 632–633, 19 N.Y.S.3d 329 ). " ‘[E]vidence of the contents of business records is admissible only where the records themselves are introduced’ " ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 205–206, 97 N.Y.S.3d 286, quoting 35 Carmody–Wait 2d § 194:94 [2019] ). Without submission of the business records, a witness's testimony as to the contents of the records is inadmissible hearsay (see CPLR 4518[a] ; Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 206, 97 N.Y.S.3d 286 ; U.S. Bank N.A. v. 22 S. Madison, LLC, 170 A.D.3d 772, 774, 95 N.Y.S.3d 264 ). Here, Herberg's assertion, in effect, that the plaintiff was the holder of the note when it commenced the action appears to be based upon unproduced business records or upon confirmation of information from some other unproduced source, and is therefore not probative on the issue of the plaintiff's standing (see U.S. Bank N.A. v. 22 S. Madison, LLC, 170 A.D.3d at 774, 95 N.Y.S.3d 264 ; Great Am. Ins. Co. v. Auto Mkt. of Jamaica, N.Y., 133 A.D.3d at 633, 19 N.Y.S.3d 329 ). Thus, the plaintiff failed to establish, prima facie, that it had standing to commence the action. Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Moshe Atedgi (hereinafter the appellant).
However, we agree with the Supreme Court's determination to deny the appellant's cross motion for summary judgment dismissing the complaint insofar as asserted against him. The appellant failed to make a prima facie showing that the plaintiff lacked standing to commence this action (see EMC Mtge. Corp. v. Tinari, 169 A.D.3d at 1008, 94 N.Y.S.3d 593 ; Wells Fargo Bank, N.A. v. Talley, 153 A.D.3d 583, 59 N.Y.S.3d 743 ). Moreover, contrary to the appellant's contention, he waived the right to assert that the plaintiff's failure to perform a condition precedent set forth in the mortgage bars this foreclosure action, as this defense was never raised in his answer or in any motion for leave to amend his answer (see CPLR 3015[a] ; JPMorgan Chase Bank, N.A. v. Akanda, 177 A.D.3d 718, 111 N.Y.S.3d 642 ; Federal Natl. Mtge. Assn. v. Onuoha, 172 A.D.3d 1170, 102 N.Y.S.3d 214 ; Nationstar Mtge., LLC v. Vordermeier, 165 A.D.3d 822, 86 N.Y.S.3d 191 ).
The appellant's remaining contention is without merit.
BALKIN, J.P., LEVENTHAL, BARROS and WOOTEN, JJ., concur.