Opinion
11880 Index No. 380990/2013 Case No. 2019-4571
09-29-2020
U.S. BANK NATIONAL ASSOCIATION, etc., Plaintiff–Respondent, v. Walter RUSSELL, et al., Defendants–Appellants, Criminal Court of the City of New York, et al., Defendants.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellants. Gross Polowy LLC, Williamsville (Douglas C. Weinert of counsel), for respondent.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellants.
Gross Polowy LLC, Williamsville (Douglas C. Weinert of counsel), for respondent.
Acosta, P.J., Webber, Moulton, Shulman, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about April 1, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, without costs.
Plaintiff established its prima facie entitlement to judgment of foreclosure by showing that it had physical possession of the note prior to commencing this action, and by submitting proof of defendant's default (see U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept. 2016] ; Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ). Attachment of the note to the complaint was sufficient to establish possession (see Wilmington Sav. Fund Socy., FSB v. Moran, 175 A.D.3d 1196, 106 N.Y.S.3d 857 [1st Dept. 2019] ). Further, the affidavit of plaintiff's custodian corroborated that plaintiff had possession of the note before it commenced the action (see PNC Bank, N.A. v. Salcedo, 161 A.D.3d 571, 77 N.Y.S.3d 370 [1st Dept. 2018] ). Therefore, although plaintiff submitted two versions of the note in support of its motion for summary judgment, that discrepancy did not divest it of standing to seek summary judgment (see id. )