Opinion
2015-10-14
BANK OF NEW YORK MELLON, formerly known as Bank of New York, etc., respondent, v. Ernest GREEN, appellant, et al., defendants.
Rozario & Associates, P.C., Brooklyn, N.Y. (Rovin R. Rozario of counsel), for appellant. Shapiro DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.
Rozario & Associates, P.C., Brooklyn, N.Y. (Rovin R. Rozario of counsel), for appellant. Shapiro DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Ernest Green appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated July 23, 2013, which denied his motion, in effect, for summary judgment dismissing the complaint for lack of standing.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendant Ernest Green. Green served an answer asserting, as an affirmative defense, that the plaintiff lacked standing to commence the action. Green thereafter moved, in effect, for summary judgment dismissing the complaint for lack of standing.
Initially, since Green's motion, which recited CPLR 3211(a)(3) as its basis, was made after issue was joined, and since the parties deliberately charted a summary judgment course, the Supreme Court properly treated Green's motion as one for summary judgment dismissing the complaint for lack of standing ( see Meredith v. Siben & Siben, LLP, 130 A.D.3d 791, 13 N.Y.S.3d 520; Hopper v. McCollum, 65 A.D.3d 669, 670, 885 N.Y.S.2d 304; Tendler v. Bais Knesses of New Hempstead, Inc., 52 A.D.3d 500, 502, 860 N.Y.S.2d 551).
Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief ( see MLCFC 2007–9 Mixed Astoria, LLC v. 36–02 35th Ave. Dev., LLC, 116 A.D.3d 745, 746, 983 N.Y.S.2d 604; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578; Wells Fargo Bank Minn. N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247). However, on a defendant's motion, the burden is on the defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law ( see U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 847, 5 N.Y.S.3d 116; Citibank, N.A. v. Herman, 125 A.D.3d 587, 588–589, 3 N.Y.S.3d 379).
A plaintiff has standing to commence a foreclosure action when it is either the holder or the assignee of the underlying note at the time the action is commenced ( see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363; Bank of N.Y. v. Silverberg, 86 A.D.3d at 279–280, 926 N.Y.S.2d 532). “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” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578; see MLCFC 2007–9 Mixed Astoria, LLC v. 36–02 35th Ave. Dev., LLC, 116 A.D.3d at 746–747, 983 N.Y.S.2d 604; Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 912, 961 N.Y.S.2d 200; Deutsche Bank Natl. Trust Co. v. Haller, 100 A.D.3d 680, 682, 954 N.Y.S.2d 551; Bank of N.Y. v. Silverberg, 86 A.D.3d at 281, 926 N.Y.S.2d 532).
Here, Green failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the complaint for lack of standing, since he failed to eliminate questions of fact as to whether the subject note was physically delivered and endorsed to the plaintiff prior to the commencement of the action ( see Deutsche Bank Natl. Trust Co. v. Haller, 100 A.D.3d at 683–684, 954 N.Y.S.2d 551). Accordingly, Green's motion was properly denied without regard to the sufficiency of the opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
In light of our determination, we need not reach the plaintiff's remaining contention. DILLON, J.P., CHAMBERS, HALL and HINDS–RADIX, JJ., concur.