Opinion
02-22-2017
CITIGROUP, etc., respondent, v. Tzivya C. KOPELOWITZ, also known as Tzivya C. Lieber, et al., appellants, et al., defendants.
Lee M. Nigen, Brooklyn, NY (Ellery Ireland of counsel), for appellants. Rosicki, Rosicki & Associates, P.C., Plainview, NY (Lijue T. Philip and Andrew Morganstern of counsel), for respondent.
Lee M. Nigen, Brooklyn, NY (Ellery Ireland of counsel), for appellants.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Lijue T. Philip and Andrew Morganstern of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to foreclose a mortgage, the defendants Tzivya C. Kopelowitz, also known as Tzivya C. Lieber, and David Kopelowitz appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Nahman, J.), entered May 13, 2015, as 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.
"To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default" (JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 644, 37 N.Y.S.3d 286 ; see HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1207, 18 N.Y.S.3d 67 ). There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon (accord North Am. Sav. Bank, FSB v. Esposito–Como, 141 A.D.3d 706, 35 N.Y.S.3d 491 ; Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 18 N.Y.S.3d 67 ).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the note and mortgage, and the affidavit of Phonesay Say, a vice president of the plaintiff's loan servicer, attesting to the appellants' default based upon his review of payment records kept in the regular course of the loan servicer's business (see Emigrant Bank v. Marando, 143 A.D.3d 856, 39 N.Y.S.3d 83 ). Contrary to the appellants' contentions, Say's affidavit was sufficient proof of their default because the business records he relied upon satisfied the admissibility requirements of CPLR 4518(a), and the records themselves actually evinced the facts underlying the appellants' default (see North Am. Sav. Bank, FSB v. Esposito–Como, 141 A.D.3d 706, 35 N.Y.S.3d 491 ; Pennymac Holdings, LLC v. Tomanelli, 139 A.D.3d 688, 32 N.Y.S.3d 181 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 18 N.Y.S.3d 67 ). In opposition, the appellants failed to raise a triable issue of fact (see TD Bank, N.A. v. Mandia, 133 A.D.3d 590, 591, 20 N.Y.S.3d 83 ).
Contrary to the appellants' contention, by failing to raise the issue of the plaintiff's standing to commence this action in their answer (see CPLR 3018[b] ), or make a pre-answer motion to dismiss based on lack of standing (see CPLR 3211[e] ), they waived the issue (see JP Morgan Chase Bank, N.A. v. Butler, 129 A.D.3d 777, 780, 12 N.Y.S.3d 145 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244–245, 837 N.Y.S.2d 247 ). Under such circumstances, the plaintiff was not required to establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law (see Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566, 567, 996 N.Y.S.2d 130 ).
The appellants' remaining contentions are improperly raised for the first time on appeal (see generally PHH Mtge. Corp. v.
Celestin, 130 A.D.3d 703, 704, 11 N.Y.S.3d 871 ; Federal Natl. Mtge. Assn. v. Cappelli, 120 A.D.3d 621, 622, 990 N.Y.S.2d 856 ).
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.