Opinion
04-06-2016
GENERATION MORTGAGE COMPANY, respondent, v. Nelson MEDINA, appellant, et al., defendants.
Richard J. Sullivan, Port Jefferson, N.Y., for appellant. Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham, N.Y. (Daniel Young of counsel), for respondent.
Richard J. Sullivan, Port Jefferson, N.Y., for appellant.
Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham, N.Y. (Daniel Young of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Nelson Medina appeals, as limited by his brief, from so much a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Santorelli, J.), entered August 17, 2015, as, upon an order of the same court (Kent, J.) dated June 18, 2014, granting the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference, and an order of the same court (Kent, J.) entered August 22, 2014, among other things, appointing a referee, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the judgment 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. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1206–1207, 18 N.Y.S.3d 67 ; HSBC Bank, USA v. Hagerman, 130 A.D.3d 683, 683–684, 11 N.Y.S.3d 865 ). However, where a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, the plaintiff must prove its standing as part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d at 1207, 18 N.Y.S.3d 67 ). 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 (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 360–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Idarecis, 133 A.D.3d 702, 21 N.Y.S.3d 261 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d at 1207, 18 N.Y.S.3d 67 ).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the default (see Wachovia Mtge. Corp. v. Lopa, 129 A.D.3d 830, 830–831, 13 N.Y.S.3d 97 ). Contrary to the appellant's contention, the Supreme Court did not err in concluding that the plaintiff established standing with evidence that the plaintiff was the originator of the loan and that it was still the holder of the note and mortgage when it commenced the action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 360–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wachovia Mtge. Corp. v. Lopa, 129 A.D.3d at 830–831, 13 N.Y.S.3d 97 ; Emigrant Mtge. Co., Inc. v. Persad, 117 A.D.3d 676, 677, 985 N.Y.S.2d 608 ; see also JPMorgan Chase Bank, N.A. v. Mantle, 134 A.D.3d 903, 23 N.Y.S.3d 258 ; cf. U.S. Bank N.A. v. Madero, 125 A.D.3d 757, 757–758, 5 N.Y.S.3d 105 ; Midfirst Bank v. Agho, 121 A.D.3d 343, 347–348, 991 N.Y.S.2d 623 ). In opposition, the appellant failed to raise a triable issue of fact.
The appellant waived his affirmative defense of lack of personal jurisdiction on the basis of improper service of process, as he failed to move to dismiss the complaint on that ground within 60 days after serving his answer (see CPLR 3211[e] ; Putnam County Sav. Bank v. Mastrantone, 111 A.D.3d 914, 975 N.Y.S.2d 684 ; JP Morgan Chase Bank v. Munoz, 85 A.D.3d 1124, 1126–1127, 927 N.Y.S.2d 364 ; Federici v. Metropolis Night Club, Inc., 48 A.D.3d 741, 742, 853 N.Y.S.2d 160 ).
The appellant's remaining contention is not properly before this Court.
Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference, confirmed the referee's report, and directed the sale of the subject property.
LEVENTHAL, J.P., SGROI, HINDS–RADIX and MALTESE, JJ., concur.