Opinion
2016–06522 2016–06524 Index No. 3176/14
02-13-2019
WELLS FARGO BANK, N.A., Respondent, v. Isaac M. ZUCKER, et al., Appellants, et al., Defendants.
Isaac M. Zucker and Renee K. Zucker, Woodmere, NY, appellants pro se. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, Ryan Sirianni, and Richard Sillett of counsel), for respondent.
Isaac M. Zucker and Renee K. Zucker, Woodmere, NY, appellants pro se.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, Ryan Sirianni, and Richard Sillett of counsel), for respondent.
MARK C. DILLON, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendants Isaac M. Zucker and Renee K. Zucker appeal from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), both dated April 18, 2016. The orders, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against those defendants.
ORDERED that the orders are affirmed insofar as appealed from, with costs.
In March 2014, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendants Isaac M. Zucker and Renee K. Zucker (hereinafter together the defendants). The defendants served an answer in which they asserted, inter alia, the affirmative defense of lack of standing. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants. In the two orders appealed from, both dated April 18, 2016, the Supreme Court, inter alia, granted that branch of the plaintiff's motion. The defendants appeal.
" ‘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’ " ( Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). However, where a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 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 to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment, 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 ; Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d at 725, 46 N.Y.S.3d 185 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ; U.S. Bank, N.A. v. Noble, 144 A.D.3d 786, 41 N.Y.S.3d 76 ). 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 (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d at 725, 46 N.Y.S.3d 185 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d at 1011, 45 N.Y.S.3d 547 ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d at 862, 45 N.Y.S.3d 189 ).
Here, the plaintiff established its standing by attaching the consolidated note secured by the subject mortgage, including an allonge endorsing the consolidated note in blank, to the summons and complaint (see U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 841, 69 N.Y.S.3d 656 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d at 1011, 45 N.Y.S.3d 547 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ; Deutsche Bank Natl. Trust Co. v. Leigh, 137 A.D.3d 841, 842, 28 N.Y.S.3d 86 ; Emigrant Bank v. Larizza, 129 A.D.3d 904, 905, 13 N.Y.S.3d 129 ; Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 1152, 9 N.Y.S.3d 315 ). The plaintiff further sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the consolidated note, and proof of the defendants' default in payment (see U.S. Bank N.A. v. Saravanan, 146 A.D.3d at 1011, 45 N.Y.S.3d 547 ). In opposition, the defendants failed to raise a triable issue of fact.
The defendants waived any defense based on the plaintiff's alleged failure to comply with a condition precedent of the consolidated mortgage since they did not raise this defense with specificity in their answer or in any motion to amend their answer (see CPLR 3015[a] ; Nationstar Mtge., LLC v. Vordermeier, 165 A.D.3d 822, 822–823, 86 N.Y.S.3d 191 ; Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 7, 63 N.Y.S.3d 352 ; 1199 Hous. Corp. v. International Fid. Ins. Co., 14 A.D.3d 383, 384, 788 N.Y.S.2d 88 ).
The defendants' remaining contention is without merit.
Accordingly, we agree with the Supreme Court's determination granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendants.
DILLON, J.P., BARROS, IANNACCI and CHRISTOPHER, JJ., concur.