Opinion
2016–02774 2016–09785 Index No. 20104/09
07-18-2018
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., etc., respondent, v. Sharry SUKHU, appellant, et al., defendants.
Zimmerman Law, P.C., Huntington Station, N.Y. (Michael Zimmerman of counsel), for appellant. Greenberg Traurig, LLP, New York, N.Y. (Daniel R. Milstein of counsel), for respondent.
Zimmerman Law, P.C., Huntington Station, N.Y. (Michael Zimmerman of counsel), for appellant.
Greenberg Traurig, LLP, New York, N.Y. (Daniel R. Milstein of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Sharry Sukhu appeals from (1) an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Denis J. Butler, J.), entered December 17, 2015, and (2) an order of the same court dated June 10, 2016. The order, insofar as appealed from, denied those branches of the motion of the defendant Sharry Sukhu which were pursuant to CPLR 5015(a)(1) to vacate the order and judgment of foreclosure and sale entered upon her default in opposing the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and, thereupon, to dismiss the complaint insofar as asserted against her for failure to comply with RPAPL 1303 and failure to provide notice of her default as required by the terms of the mortgage. The appeal from the order and judgment of foreclosure and sale entered December 17, 2015, brings up for review an order of the same court dated December 2, 2010, granting the plaintiff's motion, inter alia, for summary judgment on the complaint, and an order of the same court dated July 12, 2011, denying the motion of the defendant Sharry Sukhu pursuant to CPLR 5015(a)(3) to vacate the order dated December 2, 2010.
ORDERED that the appeal from the order and judgment of foreclosure and sale entered December 17, 2015, is dismissed, except insofar as it brings up for review the order dated December 2, 2010, granting the plaintiff's motion, inter alia, for summary judgment on the complaint, and the order dated July 12, 2011, denying the motion of the defendant Sharry Sukhu to vacate the order dated December 2, 2010; and it is further,
ORDERED that the order and judgment of foreclosure and sale entered December 17, 2015, is affirmed insofar as reviewed; and it is further,
ORDERED that the order dated June 10, 2016, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage. The defendant Sharry Sukhu (hereinafter the defendant) answered the complaint and asserted the affirmative defenses of the statute of limitations, failure to state a cause of action, lack of personal jurisdiction, and lack of standing. The plaintiff later moved, inter alia, for summary judgment on the complaint, to strike the defendant's answer, and for the appointment of a referee to determine the amount due. The defendant opposed the motion. By order dated December 2, 2010, the Supreme Court granted the plaintiff's motion. Thereafter, the defendant moved, inter alia, pursuant to CPLR 5015(a)(3) to vacate the order dated December 2, 2010. By order dated July 12, 2011, the court denied the defendant's motion. On December 17, 2015, the court granted the plaintiff's motion, unopposed by the defendant, to confirm the referee's report and for a judgment of foreclosure and sale, and entered a judgment of foreclosure and sale. The defendant subsequently moved, inter alia, to vacate her default in opposing the plaintiff's motion and, thereupon, to dismiss the complaint insofar as asserted against her. By order dated June 10, 2016, the court denied the defendant's motion. The defendant appeals from the order and judgment of foreclosure and sale entered December 17, 2015, and the order dated June 10, 2016.
No appeal lies from an order or judgment made upon the default of the appealing party (see CPLR 5511 ; Wilmington Sav. Fund Socy., FSB v. Zimmerman, 157 A.D.3d 846, 69 N.Y.S.3d 654 ; Deutsche Bank Natl. Trust Co. v. Jagroop, 104 A.D.3d 723, 960 N.Y.S.2d 488 ). Nonetheless, the appeal from a judgment brings up for review those "matters which were the subject of contest" before the Supreme Court ( James v. Powell, 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ; see HSBC Mtge. Corp. [USA] v. MacPherson, 89 A.D.3d 1061, 934 N.Y.S.2d 428 ; Credit–Based Asset Servicing & Securitization v. Chaudry, 304 A.D.2d 708, 757 N.Y.S.2d 791 ). Accordingly, in this case, review is limited to so much of the order and judgment of foreclosure and sale as brings up for review the order dated December 2, 2010, granting the plaintiff's motion, inter alia, for summary judgment on the complaint, and the order dated July 12, 2011, denying the defendant's motion, inter alia, to vacate the order dated December 2, 2010, granting the plaintiff's motion, inter alia, for summary judgment on the complaint.
We agree with the Supreme Court's determination granting that branch of the plaintiff's motion which was for summary judgment on the complaint. Here, the plaintiff's standing was placed in issue by the affirmative defense asserted in the defendant's answer. Consequently, on its motion for summary judgment, the plaintiff was required to prove its standing as part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 703, 21 N.Y.S.3d 261 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578 ). A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank N.A. v. Cohen, 156 A.D.3d 844, 845–846, 67 N.Y.S.3d 643 ; U.S. Bank, N.A. v. Noble, 144 A.D.3d 786, 41 N.Y.S.3d 76 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ).
The plaintiff demonstrated its standing based on its status as an assignee of the note as of the date the action was commenced (see U.S. Bank N.A. v. Cox, 148 A.D.3d 962, 49 N.Y.S.3d 527 ; Deutsche Bank Natl. Trust Co. v. Romano, 147 A.D.3d 1021, 48 N.Y.S.3d 237 ; U.S. Bank N.A. v. Akande, 136 A.D.3d 887, 26 N.Y.S.3d 164 ; Emigrant Bank v. Larizza, 129 A.D.3d 904, 13 N.Y.S.3d 129 ; Chase Home Fin., LLC v. Miciotta, 101 A.D.3d 1307, 1307–1308, 956 N.Y.S.2d 271 ), "and the mortgage passes with the debt as an inseparable incident" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ; see Bank of N.Y. Mellon v. Lopes, 158 A.D.3d 662, 71 N.Y.S.3d 147 ). In opposition, the defendant failed to raise a triable issue of fact.
The defendant's contention that the plaintiff failed to demonstrate compliance with RPAPL 1303 and the notice of default provision in the mortgage is not properly before this Court, as those issues were not raised before the Supreme Court in opposition to the plaintiff's motion (see Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 968, 63 N.Y.S.3d 890 ; 40 BP, LLC v. Katatikarn, 147 A.D.3d 710, 46 N.Y.S.3d 217 ).
We also agree with the Supreme Court's denial of the defendant's motion, inter alia, pursuant to CPLR 5015(a)(3) to vacate the order dated December 2, 2010, granting the plaintiff's motion, inter alia, for summary judgment on the complaint. The defendant failed to meet her burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff that would warrant vacatur of the order dated December 2, 2010, pursuant to CPLR 5015(a)(3) (see LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945, 945–946, 45 N.Y.S.3d 538 ; Golden First Bank v. Tal, 136 A.D.3d 974, 25 N.Y.S.3d 638 ; Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 968 N.Y.S.2d 513 ).
Finally, "[i]n order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion" ( Hudson City Sav. Bank v. Bomba, 149 A.D.3d 704, 705, 51 N.Y.S.3d 570 ; see NYCTL 1998–2 Trust v. McGill, 138 A.D.3d 1077, 1078, 30 N.Y.S.3d 308 ; Aurora Loan Servs., LLC v. Ahmed, 122 A.D.3d 557, 557, 996 N.Y.S.2d 92 ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" ( Deutsche Bank Natl. Trust Co. v. Saketos, 158 A.D.3d 610, 612, 72 N.Y.S.3d 167 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Bomba, 149 A.D.3d at 705, 51 N.Y.S.3d 570 ; Aurora Loan Servs., LLC v. Ahmed, 122 A.D.3d at 557–558, 996 N.Y.S.2d 92 ).
Here, the defendant failed to offer a reasonable excuse for her default in opposing the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale (see Turko v. Daffy's, Inc., 111 A.D.3d 615, 974 N.Y.S.2d 126 ). Even if the defendant had demonstrated a reasonable excuse for her default, she failed to offer a potentially meritorious defense to the action (see Signature Bank v. Epstein, 95 A.D.3d 1199, 945 N.Y.S.2d 347 ; Long Is. Sav. Bank, FSB v. Mihalios, 269 A.D.2d 502, 704 N.Y.S.2d 483 ; First N. Mortgagee Corp. v. Yatrakis, 154 A.D.2d 433, 433–434, 546 N.Y.S.2d 9 ). Accordingly, we agree with the Supreme Court's determination denying those branches of the defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate the order and judgment of foreclosure and sale entered upon her default and, thereupon, to dismiss the complaint insofar as asserted against her.
MASTRO, J.P., DILLON, MALTESE and LASALLE, JJ., concur.