Opinion
02-10-2016
ARCH BAY HOLDINGS, LLC–SERIES 2010B, respondent, v. Daisey R. SMITH, also known as Daisy R. Smith, et al., appellants, et al., defendants.
Law Office of Beverly Benjamin–George, P.C., Jamaica, N.Y. (Beverly Benjamin–George of counsel), for appellants. Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), for respondent.
Law Office of Beverly Benjamin–George, P.C., Jamaica, N.Y. (Beverly Benjamin–George of counsel), for appellants.
Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Daisey R. Smith, also known as Daisy R. Smith, and Mary H. Smith, also known as Mary Smith, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered May 30, 2013, as denied that branch of their motion which was pursuant to CPLR 3211(a)(3) to dismiss the amended complaint insofar as asserted against them for lack of standing.
ORDERED that the order is affirmed insofar as appealed from, with costs.
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 Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 981, 19 N.Y.S.3d 543 ; Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475, affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547 ; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ). On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law (see HSBC Mtge. Corp. [USA] v. MacPherson, 89 A.D.3d 1061, 1062, 934 N.Y.S.2d 428 ). To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing (see U.S. Bank N.A. v. Faruque, 120 A.D.3d 575, 578, 991 N.Y.S.2d 630 ; Deutsche Bank Natl. Trust Co. v. Haller, 100 A.D.3d 680, 683, 954 N.Y.S.2d 551 ).
Here, by adducing evidence that the note was in its possession and the mortgage had been assigned to it prior to the commencement of the action, the plaintiff made a showing sufficient to deny that branch of the appellants' motion which was pursuant to CPLR 3211(a)(3) to dismiss the amended complaint insofar as asserted against them for lack of standing (see Nationstar Mtge., LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d 315 ; U.S. Bank
N.A. v. Faruque, 120 A.D.3d 575, 991 N.Y.S.2d 630 ).
RIVERA, J.P., SGROI, MILLER and HINDS–RADIX, JJ., concur.