Opinion
1096 CA 14-00879.
10-09-2015
FIRST FRANKLIN FINANCIAL CORPORATION, Plaintiff–Appellant, v. William NORTON, also known as William A. Norton, Defendant–Respondent, New York State Department of Taxation and Finance, et al., Defendants.
Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), For Plaintiff–Appellant. Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Marco Cercone of Counsel), and Arthur N. Bailey & Associates, Jamestown, for Defendant–Respondent.
Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), For Plaintiff–Appellant.
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Marco Cercone of Counsel), and Arthur N. Bailey & Associates, Jamestown, for Defendant–Respondent.
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM: In this mortgage foreclosure action, plaintiff appeals from an order that, inter alia, granted the motion of William Norton, also known as William A. Norton (defendant) to dismiss the complaint against him and sua sponte cancelled the mortgage. Contrary to plaintiff's contention, Supreme Court properly granted the motion to dismiss the complaint on the ground that plaintiff lacked standing. “A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547 ; see Deutsche Bank Trust
Co. Ams. v. Vitellas, 131 A.D.3d 52, 59, 13 N.Y.S.3d 163 ; U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 846, 5 N.Y.S.3d 116 ). Here, defendant met his burden on his motion to dismiss by establishing that plaintiff lacked standing because it did not have “ ‘[e]ither a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action’ ” (U.S. Bank N.A. v. Madero, 80 A.D.3d 751, 753, 915 N.Y.S.2d 612 ; 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 ; cf. Deutsche Bank Trust Co. Ams., 131 A.D.3d at 59–60 ), and plaintiff failed to raise a question of fact (cf. U.S. Bank N.A. v. Faruque, 120 A.D.3d 575, 578, 991 N.Y.S.2d 630 ; Deutsche Bank Natl. Trust Co. v. Haller, 100 A.D.3d 680, 683, 954 N.Y.S.2d 551 ).
Contrary to plaintiff's further contention, the court properly reconsidered defendant's CPLR 3211 motion to dismiss, having expressly denied the earlier motion with leave to renew after the completion of discovery. Indeed, in the order on appeal and in its written decision underlying the order, the court specified that it had “reserved decision” on the earlier motion.
We agree with plaintiff, however, that the court erred in sua sponte cancelling the mortgage. Defendant “was not entitled to the judicial determination cancelling and discharging the subject mortgage and adjudging the subject property free therefrom” (Ruiz v. Mortgage Elec. Registration Sys., Inc., 130 A.D.3d 1000, 1002, 15 N.Y.S.3d 376 ; see generally IndyMac Bank, F.S.B. v. Yano–Horoski, 78 A.D.3d 895, 896, 912 N.Y.S.2d 239 ). We therefore modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the second ordering paragraph, and as modified the order is affirmed without costs.