Opinion
2019–00683 Index No. 710517/16
02-03-2021
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent v. Howard GEORGE, appellant, et al., defendants.
IM Law Group, P.C., Cedarhurst, N.Y. (Igor Meystelman of counsel), for appellant. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Evelyn P. Flores of counsel), for respondent.
IM Law Group, P.C., Cedarhurst, N.Y. (Igor Meystelman of counsel), for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Evelyn P. Flores of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Howard George appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered January 2, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Howard George, to strike that defendant's answer, and for an order of reference.
ORDERED that the order is affirmed insofar as appealed from, with costs.
" ‘Generally, 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’ " ( Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Additionally, where a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25 ; Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475, affd 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247 ).
A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25 ). "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" ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; 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 ).
Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting copies of the mortgage agreement, the note, and evidence of the default of the defendant Howard George (hereinafter the defendant) in payment (see U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ). The plaintiff additionally established its standing to commence the action 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, endorsed in blank, to the summons and complaint (see U.S. Bank Trust, N.A. v. Porter, 175 A.D.3d 530, 532, 107 N.Y.S.3d 52 ).
Contrary to the defendant's contention, the plaintiff demonstrated that the subject loan was not a "home loan" for the purposes of RPAPL 1304, and that it was therefore not required to comply with the notice requirements of the statute (see Vanderbilt Mtge. & Fin., Inc. v. Ammon, 179 A.D.3d 1138, 118 N.Y.S.3d 125 ; Citibank, N.A. v. Crick, 176 A.D.3d 776, 778, 110 N.Y.S.3d 720 ; Citimortgage, Inc. v. Simon, 137 A.D.3d 1190, 1192–1193, 28 N.Y.S.3d 454 ). Likewise, the plaintiff was not required to demonstrate its compliance with RPAPL 1306 (see B & H Florida Notes LLC v. Ashkenazi, 149 A.D.3d 401, 402, 51 N.Y.S.3d 59 ).
In opposition, the defendant, who waived the defense of lack of personal jurisdiction by failing to assert it in his answer or in a pre-answer motion to dismiss (see Ulster Sav. Bank v. Fiore, 165 A.D.3d 734, 735, 85 N.Y.S.3d 87 ; MidFirst Bank v. Ajala, 146 A.D.3d 875, 875, 44 N.Y.S.3d 771 ), failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference.
MASTRO, A.P.J., BARROS, CONNOLLY and WOOTEN, JJ., concur.