Opinion
2018-12107 Index No. 714459/16
11-12-2020
WELLS FARGO BANK, N.A., appellant, v. Simon KHAN, et al., respondents, et al., defendants.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Virginia C. Grapensteter, Austin T. Shufelt, and Ellis M. Oster of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Virginia C. Grapensteter, Austin T. Shufelt, and Ellis M. Oster of counsel), for appellant.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Cheree´ A. Buggs, J.), entered August 27, 2018. The order, insofar as appealed from, in effect, upon reargument, adhered to a prior determination in an order of the same court entered March 14, 2018, denying those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Simon Khan and Yeonsu Choi and for an order of reference.
ORDERED that the order entered August 27, 2018, is reversed insofar as appealed from, on the law, with costs, the determination in the order entered March 14, 2018, denying those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Simon Khan and Yeonsu Choi and for an order of reference is vacated, and those branches of the motion are granted.
The plaintiff commenced this mortgage foreclosure action in November 2016, annexing, inter alia, a copy of the note, indorsed in blank, to the complaint. The defendants Simon Khan and Yeonsu Choi (hereinafter together the defendants) interposed an answer generally denying the allegations in the complaint and asserting several affirmative defenses, including lack of standing. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference.
In an order entered March 14, 2018, the Supreme Court denied the plaintiff's motion, determining that while the plaintiff established its prima facie entitlement to judgment as a matter of law, the defendants raised triable issues of fact in opposition. The plaintiff moved for leave to reargue. In an order entered August 27, 2018, the Supreme Court, in effect, granted leave to reargue, but adhered to its prior determination. The plaintiff appeals from the August 27, 2018 order.
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 (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 ). Here, the plaintiff established, prima facie, its standing to commence this action by attaching a copy of the note, indorsed in blank, to the complaint (see American Home Mtge. Servicing, Inc. v. Carnegie, 181 A.D.3d 632, 633–634, 121 N.Y.S.3d 148 ; Nationstar Mtge., LLC v. Shivers, 179 A.D.3d 931, 933, 114 N.Y.S.3d 242 ). Further, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see Nationstar Mtge., LLC v. Shivers, 179 A.D.3d at 932, 114 N.Y.S.3d 242, Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ).
In opposition, the defendants failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Wells Fargo Bank, N.A. v. Tricario, 180 A.D.3d 848, 119 N.Y.S.3d 139 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011–1012, 45 N.Y.S.3d 547 ).
Accordingly, the Supreme Court, upon reargument, should have granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference.
CHAMBERS, J.P., HINDS–RADIX, LASALLE and WOOTEN, JJ., concur.