Opinion
2014-03-12
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Oscar CALDERON, appellant, et al., defendants.
Raymond S. Voulo, Mineola, N.Y., for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Allison J. Schoenthal, and Chava Brandriss of counsel), for respondent.
Raymond S. Voulo, Mineola, N.Y., for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Allison J. Schoenthal, and Chava Brandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Oscar Calderon appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated June 16, 2011, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him and to vacate an assignment of mortgage.
ORDERED that the order is affirmed, with costs.
A plaintiff has standing to commence a mortgage foreclosure action when, at the time of commencement of the action, it is the holder or assignee of the mortgage and the holder or assignee of the underlying note ( see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532). Here, the defendant Oscar Calderon moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff lacked standing because the assignment of the mortgage to the plaintiff was invalid. The evidence in the record, however, established that the assignment, which took place before the action was commenced, was valid. Therefore, the Supreme Court properly rejected Calderon's contention in denying his motion.
Calderon now also contends that the plaintiff lacked standing because it was not the holder of the note at the time it commenced this action. However, this contention, which was raised for the first time on appeal, is not properly before us ( see Mortgage Elec. Registration Sys., Inc. v. Korolizky, 100 A.D.3d 605, 606, 952 N.Y.S.2d 902).
Calderon's remaining contention is without merit.
Accordingly, the Supreme Court properly denied Calderon's motion for summary judgment dismissing the complaint insofar as asserted against him and to vacate the assigment of the mortgage. DILLON, J.P., BALKIN, CHAMBERS and COHEN, JJ., concur.