Opinion
2017–00096 Index No. 62853/14
05-29-2019
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent, v. John A. CARDONA, Appellant, et al., Defendants.
Tirelli & Wallshein, PLLC, Melville, N.Y. (Charles Wallshein of counsel), for appellant. Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Marissa Banez ], of counsel), for respondent.
Tirelli & Wallshein, PLLC, Melville, N.Y. (Charles Wallshein of counsel), for appellant.
Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Marissa Banez ], of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2003, the defendant John A. Cardona (hereinafter the defendant) executed a note in the sum of $ 430,000 in favor of nonparty Argent Mortgage Company for a loan that was secured by a mortgage on real property located in Aquebogue, Suffolk County. On or about April 21, 2014, the plaintiff commenced this mortgage foreclosure action, alleging that the defendant had defaulted on payment obligations of the note. The note, which was endorsed in blank, was annexed to the complaint. The defendant interposed various affirmative defenses in his answer, alleging, among other things, that the plaintiff lacked standing to commence the action.
The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer and affirmative defenses, and for an order of reference. The defendant cross-moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him for lack of standing and to compel discovery. The Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied those branches of the defendant's cross motion.
We agree with the Supreme Court's determination granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and affirmative defenses, and for an order of reference. In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ; Aurora Loan Servs., LLC v. Mercius , 138 A.D.3d 650, 651, 29 N.Y.S.3d 462 ; Plaza Equities, LLC v. Lamberti , 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Where, as in this case, the plaintiff's standing has been placed in issue by reason of the defendant's answer, the plaintiff additionally must prove its standing as part of its prima facie showing (see Wells Fargo Bank, N.A. v. Rooney , 132 A.D.3d 980, 981, 19 N.Y.S.3d 543 ; HSBC Bank USA, N.A. v. Baptiste , 128 A.D.3d 773, 774, 10 N.Y.S.3d 255 ). "A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced" ( Deutsche Bank Natl. Trust Co. v. Brewton , 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( Dyer Trust 2012–1 v. Global World Realty, Inc. , 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d 643, 644–645 ).
Here, the plaintiff established, prima facie, that it had standing by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note, which was endorsed in blank, to the summons and complaint at the time the action was commenced (see Bank of N.Y. Mellon v. Adam Plotch, LLC , 162 A.D.3d 502, 502, 79 N.Y.S.3d 135 ; Bank of Am., N.A. v. Wheatley , 158 A.D.3d 736, 737, 73 N.Y.S.3d 88 ; Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d at 862–863, 45 N.Y.S.3d 189 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d at 645, 37 N.Y.S.3d 286 ; Deutsche Bank Natl. Trust Co. v. Leigh , 137 A.D.3d 841, 842, 28 N.Y.S.3d 86 ; Emigrant Bank v. Larizza , 129 A.D.3d 904, 905, 13 N.Y.S.3d 129 ). Contrary to the defendant's contention, "[t]here is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it" ( JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d at 645, 37 N.Y.S.3d 286 ; see UCC 3–204 [2] ). Further, where the note is affixed to the complaint, "it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date" ( JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d at 645, 37 N.Y.S.3d 286 ; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d at 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ).
Additionally, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the note, and evidence of the defendant's default in payment under the terms of the note (see Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d at 863, 45 N.Y.S.3d 189 ; HSBC Bank USA, N.A. v. Baptiste , 128 A.D.3d at 774, 10 N.Y.S.3d 255 ). In opposition, the defendant failed to raise a triable issue of fact (see Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d at 863, 45 N.Y.S.3d 189 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., CHAMBERS, COHEN and IANNACCI, JJ., concur.