Opinion
2016–11952 Index No. 1943/14
10-03-2018
CITIMORTGAGE, INC., appellant, v. John J. GILL, etc., et al., defendants.
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Putnam County (Paul I. Marx, J.), dated May 19, 2016. The order denied the plaintiff's ex parte motion for an order of reference.
ORDERED that on the Court's own motion, the appeal from the order is deemed an application pursuant to CPLR 5704(a) to vacate the order and to grant the plaintiff's ex parte motion; and it is further,
ORDERED that the application pursuant to CPLR 5704(a) is granted and the plaintiff's ex parte motion for an order of reference is granted.
On or about September 9, 2014, the plaintiff commenced this action to foreclose a mortgage against the defendant John Gill (hereinafter the defendant), among others. The defendant failed to appear or answer the complaint. On or about August 14, 2015, the plaintiff moved, ex parte, for an order of reference. The Supreme Court denied the motion.
The plaintiff established its entitlement to an order of reference based on its submission of the mortgage, the unpaid note, the complaint, other proof setting forth the facts establishing the claim, an affidavit of an individual authorized to act on its behalf attesting to the default on the note, and proof that the defendant failed to answer within the time allowed (see RPAPL 1321 ; Household Fin. Realty Corp. of N.Y. v. Adeosun–Ayegbusi, 156 A.D.3d 870, 871, 65 N.Y.S.3d 761 ; John T. Walsh Enters., LLC v. Jordan, 152 A.D.3d 755, 756, 60 N.Y.S.3d 70 ; LaSalle Bank N.A. v. Jagoo, 147 A.D.3d 746, 746, 46 N.Y.S.3d 216 ). The Supreme Court should not have sua sponte raised the issue of the plaintiff's standing, since the defendant failed to appear or answer or move to vacate his default (see Nationstar Mtge., LLC v. Kamil, 155 A.D.3d 968, 969, 63 N.Y.S.3d 890 ; JPMorgan Chase Bank, N.A. v. Comfort Boampong, 145 A.D.3d 981, 983, 44 N.Y.S.3d 189 ; HSBC Bank USA v. Angeles, 143 A.D.3d 671, 673, 38 N.Y.S.3d 580 ).
Accordingly, the Supreme Court should have granted the plaintiff's ex parte motion for an order of reference.
LEVENTHAL, J.P., COHEN, LASALLE and CHRISTOPHER, JJ., concur.