Summary
holding plaintiff had standing based on affidavit establishing physical possession of endorsed note prior to commencement of the action, despite factual issues with undated allonges and deficient written assignment
Summary of this case from CIT Bank v. NerisOpinion
6596N 6596A Index 35246/13E
05-17-2018
PNC BANK, NATIONAL ASSOCIATION, Plaintiff–Appellant, v. Franklin SALCEDO, et al., Defendants–Respondents, First Franklin Financial, etc., et al., Defendants.
Fein, Such & Crane LLP, Westbury (Andrew M. Grenell of counsel), for appellant. E. Waters & Associates, P.C., Jamaica (Edward J. Waters of counsel), for respondents.
Fein, Such & Crane LLP, Westbury (Andrew M. Grenell of counsel), for appellant.
E. Waters & Associates, P.C., Jamaica (Edward J. Waters of counsel), for respondents.
Friedman, J.P., Sweeny, Kahn, Oing, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about October 8, 2015, which denied plaintiff's motion for summary judgment and for a referee to compute, and order, same court and Justice, entered on or about September 1, 2016, which effectively granted reargument but adhered to the original determination, unanimously reversed, on the law, without costs, the motion for summary judgment granted, and the matter remanded for appointment of a referee to compute and ascertain the amount due plaintiff on the mortgage.
Plaintiff established its prima facie entitlement to judgment of foreclosure as a matter law by providing evidence of the note and mortgage, and proof of defendant's default ( Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 6, 63 N.Y.S.3d 352 [1st Dept. 2017] ). Plaintiff has met its burden to establish standing to commence a foreclosure action ( Bank of N.Y. Mellon v. Alli, 156 A.D.3d 597, 598, 66 N.Y.S.3d 291 [2d Dept. 2017] ). The affidavit of plaintiff's custodian was sufficient to establish possession of the endorsed note prior to the commencement of the foreclosure action (see HSBC Bank USA, N.A. v. Sage, 112 A.D.3d 1126, 1127, 977 N.Y.S.2d 446 [3d Dept. 2013], lv dismissed 23 N.Y.3d 1015, 992 N.Y.S.2d 774, 16 N.E.3d 1253 [2014] ). Thus, despite any factual issues raised by the undated allonges ( U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept. 2016] ), and even if the written assignment was deficient as to the note, plaintiff "may nevertheless establish its standing by demonstrating that the note was in its possession or that it was delivered prior to the commencement of this action" ( Wells Fargo Bank, N.A. v. Ndiaye, 146 A.D.3d 684, 684, 44 N.Y.S.3d 908 [1st Dept. 2017] ; see also U.S. Bank N.A. v. Brjimohan, 153 A.D.3d 1164, 1165, 62 N.Y.S.3d 43 [1st Dept. 2017] ).