Opinion
2017–08169 Index No. 20759/13
11-04-2020
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Ramakrishna KARIBANDI, appellant, et al., defendants.
Harvey Sorid, Uniondale, NY, for appellant. Hogan Lovells LLP, New York, N.Y. (Lisa J. Fried, Christian Fletcher, and Cameron E. Grant of counsel), for respondent.
Harvey Sorid, Uniondale, NY, for appellant.
Hogan Lovells LLP, New York, N.Y. (Lisa J. Fried, Christian Fletcher, and Cameron E. Grant of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, JEFFREY A. COHEN, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Ramakrishna Karibandi appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), dated April 5, 2017. The order and judgment of foreclosure and sale, upon an order of the same court dated August 29, 2016, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, among other things, granted the plaintiff's motion to confirm a referee's report and directed the foreclosure sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.
In August 2006, the defendant Ramakrishna Karibandi (hereinafter the defendant) borrowed $644,000 from Fremont Investment & Loan, secured by a mortgage on certain residential property in Smithtown. On August 5, 2013, the plaintiff commenced this action to foreclose the mortgage, alleging that the defendant defaulted on payments due on August 1, 2012, and thereafter. In answering the complaint, the defendant asserted an affirmative defense that the plaintiff lacked standing to foreclose the mortgage. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated August 29, 2016, the Supreme Court granted the plaintiff's motion, determining, among other things, that the plaintiff had established its standing to foreclose. The court subsequently issued an order and judgment of foreclosure and sale dated April 5, 2017. The defendant appeals.
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 the borrower's default in payment (see Deutsche Bank Natl. Trust Co. v Auguste , 185 A.D.3d 657, 658, 124 N.Y.S.3d 860 ; Deutsche Bank Natl. Trust Co. v. Brewton , 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ). Additionally, where, as here, the 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. Auguste , 185 A.D.3d at 658, 124 N.Y.S.3d 860 ; Deutsche Bank Natl. Trust Co. v. Bowens , 181 A.D.3d 871, 873 ; JPMorgan Chase Bank, N.A. v. Rosa , 169 A.D.3d 887, 889, 94 N.Y.S.3d 602 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, at the time the action was commenced, it was either the holder or assignee of the underlying note (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 ; Deutsche Bank Natl. Trust Co. v. Bowens , 181 A.D.3d at 873, 121 N.Y.S.3d 327 ). 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 (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 ; Deutsche Bank Natl. Trust Co. v. Bowens , 181 A.D.3d at 873, 121 N.Y.S.3d 327 ; Deutsche Bank Trust Co. Ams. v. Garrison , 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ).
Here, the plaintiff established, prima facie, its standing as the holder of the note by demonstrating that the note was in its possession at the time it commenced the action, as evidenced by its attachment of the note, endorsed in blank by the original lender, to the complaint at the time the action was commenced (see U.S. Bank N.A. v. Mezrahi , 169 A.D.3d 952, 953, 94 N.Y.S.3d 611 ; Bank of Am., N.A. v. Wheatley , 158 A.D.3d 736, 737, 73 N.Y.S.3d 88 ; U.S. Bank N.A. v. Coppola , 156 A.D.3d 934, 935, 68 N.Y.S.3d 120 ; HSBC Bank USA, N.A. v. Ozcan , 154 A.D.3d 822, 824, 64 N.Y.S.3d 38 ; Nationstar Mtge., LLC v. Catizone , 127 A.D.3d 1151, 1152, 9 N.Y.S.3d 315 ; see also CPLR 2105 ). In opposition, the defendant failed to raise a triable issue of fact. Since standing was established by the annexation of the note to the complaint, the sufficiency of an affidavit submitted by the loan's servicer is irrelevant (see U.S. Bank N.A. v. Seeley , 177 A.D.3d 933, 935, 112 N.Y.S.3d 762 ). Accordingly, we agree with the Supreme Court's determination, in the order dated August 29, 2016, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.
In light of our determination, we need not address the parties' remaining contentions on the issue of standing.
Since the defendant raises no other challenges to the order and judgment of foreclosure and sale, we affirm the order and judgment of foreclosure and sale.
SCHEINKMAN, P.J., BALKIN, COHEN and LASALLE, JJ., concur.