Opinion
831, 35039/12.
04-14-2016
BANK OF AMERICA, N.A., successor by merger to Bac Home Loan Servicing LP, Plaintiff–Respondent, v. Binu THOMAS, et al., Defendants–Appellants, MERS as nominee for Countrywide Bank, FSB, et al., Defendants.
Charles Wallshein, Melville, for appellants. Bryan Cave LLP, New York (Elizabeth J. Goldberg of counsel), for respondent.
Charles Wallshein, Melville, for appellants.
Bryan Cave LLP, New York (Elizabeth J. Goldberg of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, MOSKOWITZ, GISCHE, and WEBBER, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered November 24, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff bank's motion for summary judgment of foreclosure, unanimously reversed, on the law, without costs, and the motion denied.
As a preliminary matter, we can consider defendants' legal arguments attacking plaintiff's prima facie showing raised for the first time on appeal (see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209–210, 641 N.Y.S.2d 252 [1st Dept.1996], lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ). Defendants are correct that, generally, an assignment of a mortgage by MERS does not convey the note (see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 283, 926 N.Y.S.2d 532 [2nd Dept.2011] ). While physical delivery of the note can serve as a separate basis to establish standing in a foreclosure action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ), plaintiff has not satisfied its burden of proving that the note is in its possession or that it was delivered prior to the commencement of this action.
Even if plaintiff's employee's affidavit sufficiently laid the foundation for the admission of the note as business record (see CPLR 4518[a] ), the note itself was not made part of the record (despite being referred to as an exhibit). In addition, although plaintiff's employee swears that based upon this review of business records, he knows that the note was delivered prior to the commencement of this action, the records relied upon for this conclusion are neither provided nor otherwise identified. Moreover, the absence of the note and nonconclusory information about its delivery makes it impossible to determine whether it was delivered from a holder, or plaintiff's standing (see U.S. Bank N.A. v. Madero, 125 A.D.3d 757, 757–758, 5 N.Y.S.3d 105 [2d Dept.2015] ); JP Morgan Chase Bank, N.A. v. Hill, 133 A.D.3d 1057, 1058–1059, 21 N.Y.S.3d 363 [3rd Dept.2015] ); cf. Aurora Loan Servs. at 360 [note and allonge attached to affidavit] ).