Opinion
2017–06999 Index No. 66298/14
01-16-2019
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent, v. Ross R. CALIGURI, etc., Appellant, et al., Defendants.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant. McCalla Raymer Leibert Pierce, LLC, New York, NY, for respondent.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.
McCalla Raymer Leibert Pierce, LLC, New York, NY, for respondent.
SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDERORDERED that the order is affirmed insofar as appealed from, with costs.
The premises that are the subject of the instant mortgage foreclosure action were also the subject of a prior mortgage foreclosure action commenced on July 2, 2009, in the Supreme Court, Suffolk County, by JPMorgan Chase Bank, National Association (hereinafter JPMorgan Chase), against, among others, the defendant Ross R. Caliguri (hereinafter the defendant). By order dated March 7, 2012, the Supreme Court granted the defendant's motion for summary judgment dismissing the complaint in that prior action on the ground that JPMorgan Chase failed to establish that it had standing and failed to comply with discovery demands. This Court affirmed, concluding that the dismissal was not on the merits (see Caliguri v. JPMorgan Chase Bank, N.A., 121 A.D.3d 1030, 1031, 996 N.Y.S.2d 73 ).
In 2014, JPMorgan Chase commenced the instant mortgage foreclosure action. In his answer, the defendant asserted certain affirmative defenses, including lack of standing. The defendant later served demands for discovery, including a demand for production of the original note. Prior to the completion of discovery, the defendant moved pursuant to 22 NYCRR 202.3(a) to transfer the action to the Justice who heard the prior foreclosure action. JPMorgan Chase moved, inter alia, for summary judgment on the complaint and for an order of reference, and the defendant cross-moved for summary judgment dismissing the complaint or to compel certain discovery. The Supreme Court denied the defendant's motion and cross motion and granted JPMorgan Chase's motion. The defendant appeals.
22 NYCRR 202.3(a) provides for an individual assignment system which assigns the continuous supervision of each action and proceeding by a single judge. However, "[t]he Uniform Rules for Trial Courts do not deal with the issue of whether related cases should be assigned to the same Judge" ( Matter of Morfesis v. Wilk, 138 A.D.2d 244, 246, 525 N.Y.S.2d 599 ). There is no requirement that related cases be heard by the same judge. Further, as the prior foreclosure action was no longer pending, there existed no "potential for conflicting rulings" ( Appolino v. Delorbe, 24 A.D.3d 252, 253, 807 N.Y.S.2d 19 ; see Clearwater Realty Co. v. Hernandez, 256 A.D.2d 100, 681 N.Y.S.2d 270 ). Accordingly, it was not an improvident exercise of discretion for the Supreme Court to deny the defendant's motion pursuant to 22 NYCRR 202.3(a) to transfer the action to the Justice who heard the prior foreclosure action.
JPMorgan Chase demonstrated its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see CitiMortgage, Inc. v. Guillermo, 143 A.D.3d 852, 39 N.Y.S.3d 86 ). In addition, it established its standing by attaching to the summons and complaint a copy of the consolidated note, bearing an endorsement in blank from the original lender (see Nationstar Mtge., LLC v. LaPorte, 162 A.D.3d 784, 79 N.Y.S.3d 70 ; HSBC Bank USA, N.A. v. Oscar, 161 A.D.3d 1055, 78 N.Y.S.3d 428 ). Contrary to the defendant's contention, "there is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it" ( U.S. Bank N.A. v. Henry, 157 A.D.3d 839, 841, 69 N.Y.S.3d 656 ). In opposition, the defendant failed to raise a triable issue of fact.
The defendant's remaining contentions are without merit. Accordingly, we agree with the Supreme Court's determination granting JPMorgan Chase's motion and denying the defendant's cross motion.
ROMAN, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.