Opinion
1361 CA 15-00458.
02-05-2016
JPMORGAN CHASE BANK, National Association, Plaintiff–Respondent, v. Christina BUSSONE, Defendant–Appellant, et al., Defendants.
Susan J. Civic, Saratoga Springs, for Defendant–Appellant. Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Plaintiff–Respondent.
Susan J. Civic, Saratoga Springs, for Defendant–Appellant.
Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Plaintiff–Respondent.
Opinion
MEMORANDUM:
Plaintiff commenced this residential foreclosure action after Christina Bussone (defendant) defaulted on her mortgage payments. Defendant contends that Supreme Court erred in failing to acknowledge her opposing affidavit in its order granting plaintiff's motion for summary judgment. We conclude that defendant's contention is moot inasmuch as the court's amended order corrected the error and superseded the original order (see generally Gorfinkel v. First Natl. Bank in Yonkers, 19 A.D.2d 903, 904, 244 N.Y.S.2d 877, affd. 15 N.Y.2d 711, 256 N.Y.S.2d 338, 204 N.E.2d 497). Although this appeal is from the original order, we deem it as taken from the amended order (see generally CPLR 5520[c]; Matter of Dante P., 81 A.D.3d 1267, 1267, 916 N.Y.S.2d 435). We reject defendant's further contention that plaintiff lacked standing to commence the foreclosure action, and thus that the court erred in granting the motion. We conclude that plaintiff “met [its] initial burden of establishing [its] prima facie entitlement to judgment as a matter of law by submitting the mortgage [issued by defendant to plaintiff], the underlying note, and evidence of a default” (Lawler v. KST Holdings Corp., 115 A.D.3d 1196, 1198, 982 N.Y.S.2d 617, lv. dismissed 24 N.Y.3d 989, 995 N.Y.S.2d 706, 20 N.E.3d 652 [internal quotation marks omitted]; see Ekelmann Group, LLC v. Stuart [Appeal No. 2], 108 A.D.3d 1098, 1099, 969 N.Y.S.2d 638). “The burden [thus] shift[ed] to the defendant to demonstrate ‘the existence of a triable issue of fact as to a bona fide defense to the action’ ” (Rose v. Levine, 52 A.D.3d 800, 801, 861 N.Y.S.2d 374; see Ekelmann Group, LLC, 108 A.D.3d at 1099, 969 N.Y.S.2d 638), and defendant failed to meet that burden.
It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.
CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and DeJOSEPH, JJ., concur.