Opinion
12-16-2015
CITIMORTGAGE, INC., respondent, v. Adam GOLDBERG, et al., appellants, et al., defendants.
The Motner Law Office, P.C., New York, N.Y. (Moshe Motner of counsel), for appellants. Akerman LLP, New York, N.Y. (Jordan M. Smith and Michael Shiba of counsel), for respondent.
The Motner Law Office, P.C., New York, N.Y. (Moshe Motner of counsel), for appellants.
Akerman LLP, New York, N.Y. (Jordan M. Smith and Michael Shiba of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Adam Goldberg and Marlaine Goldberg appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated October 31, 2013, as, in effect, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In a mortgage foreclosure action, the plaintiff has standing where it is the holder or 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 ). "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" (U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 754, 890 N.Y.S.2d 578 ).
Here, the plaintiff, which commenced this action in its capacity as holder of the subject note (cf. CWCapital Asset Mgt., LLC v. Great Neck Towers, LLC, 99 A.D.3d 850, 851, 953 N.Y.S.2d 89 ; Fairbanks Capital Corp. v. Nagel, 289 A.D.2d 99, 100, 735 N.Y.S.2d 13 ), demonstrated its standing by submitting sufficient evidence of its merger with the previous note holder (see Capital One, N.A. v. Brooklyn Flatiron, LLC, 85 A.D.3d 837, 837, 925 N.Y.S.2d 350 ). In opposition, the defendants Adam Goldberg and Marlaine Goldberg (hereinafter together the appellants) failed to raise a triable issue of fact (see Grassi & Co., CPAs, P.C. v. Janover Rubinroit, LLC, 82 A.D.3d 700, 703, 918 N.Y.S.2d 503 ). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellants.
RIVERA, J.P., CHAMBERS, SGROI and LaSALLE, JJ., concur.