The contention of defendant's counsel who asserts that the complaint must be dismissed because the plaintiff cannot demonstrate ownership of the note and mortgage is rejected as lacking in merit. Ownership of the note is not imperative to the establishment of standing as one must be either the owner or the holder of the note and mortgage at the time of the commencement of the action (see Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 2015 WL 1213591 [2d Dept 2015], supra; U.S. Bank Natl. Ass'n v Guy, 125 AD3 845, 2015 WL 668979 [2d Dept 2015], supra; HSBC Bank USA, Natl. Ass'n v Gilbert, 120 AD3d 756, 991 NYS2d 358 [2d Dept 2014]; Nationstar Mtge., LLC v Davidson, 116 AD3d 1294, 983 NYS2d 705 [3d Dept 2014], supra; Bank of NY Mellon v Gales, 116 AD3d 723, 982 NYS2d 911 [2d 2014], supra; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650, 981 NYS2d 547 [2d Dept 2013], supra). The reason underlying this rule is attributable to the nature of holder status which arises under the Uniform Commercial Code and to appellate case authorities that have recently instructed that "the holder of an instrument, whether or not he or she is the owner, may transfer or negotiate it and discharge it or enforce payment in his or her own name (Wells Fargo Bank, NA v Ostiguy, ___ AD3d ___, 2015 WL 1565673 [3d Dept 2015], quoting UCC 3—301; see also Glens Falls Indem. Co. v Chase Natl. Bank, 257 NY 441, 445 [1931]).
The contention of defendant's counsel who asserts that the complaint must be dismissed because the plaintiff cannot demonstrate ownership of the note and mortgage is rejected as lacking in merit. Ownership of the note is not imperative to the establishment of standing as one must be either the owner or the holder of the note and mortgage at the time of the commencement of the action (see Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 2015 WL 1213591 [2d Dept 2015], supra; U.S. Bank Natl. Ass'n v Guy, 125 AD3 845, 2015 WL 668979 [2d Dept 2015], supra; HSBC Bank USA, Natl. Ass'n v Gilbert, 120 AD3d 756, 991 NYS2d 358 [2d Dept 2014]; Nationstar Mtge., LLC v Davidson, 116 AD3d 1294, 983 NYS2d 705 [3d Dept 2014], supra; Bank of NY Mellon v Gales, 116 AD3d 723, 982 NYS2d 911 [2d 2014], supra; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650, 981 NYS2d 547 [2d Dept 2013], supra). The reason underlying this rule is attributable to the nature of holder status which arises under the Uniform Commercial Code and to appellate case authorities that have recently instructed that "the holder of an instrument, whether or not he or she is the owner, may transfer or negotiate it and discharge it or enforce payment in his or her own name (Wells Fargo Bank, NA v Ostiguy, ___ AD3d ___, 2015 WL 1565673 [3d Dept 2015], quoting UCC 3—301; see also Glens Falls Indem. Co. v Chase Natl. Bank, 257 NY 441, 445 [1931]).
The contention of defendant's counsel who asserts that the complaint must be dismissed because the plaintiff cannot demonstrate ownership of the note and mortgage is rejected as lacking in merit. Ownership of the note is not imperative to the establishment of standing as one must be either the owner or the holder of the note and mortgage at the time of the commencement of the action (see Citimortgage, Inc. v. Chow Ming Tung, 126 AD3d 841, 2015 WL 1213591 [2d Dept 2015], supra; U.S. Bank Natl. Ass'n v. Guy, 125 AD3 845, 2015 WL 668979 [2d Dept 2015], supra;HSBC Bank USA, Natl. Ass'n v. Gilbert, 120 AD3d 756, 991 N.Y.S.2d 358 [2d Dept 2014] ; Nationstar Mtge., LLC v. Davidson, 116 AD3d 1294, 983 N.Y.S.2d 705 [3d Dept 2014], supra;Bank of N.Y. Mellon v. Gales, 116 AD3d 723, 982 N.Y.S.2d 911 [2d 2014], supra;Kondaur Capital Corp. v. McCary, 115 AD3d 649, 650, 981 N.Y.S.2d 547 [2d Dept 2013], supra ). The reason underlying this rule is attributable to the nature of holder status which arises under the Uniform Commercial Code and to appellate case authorities that have recently instructed that “the holder of an instrument, whether or not he or she is the owner, may transfer or negotiate it and discharge it or enforce payment in his or her own name (Wells Fargo Bank, NA v. Ostiguy, –––– AD3d ––––, 2015 WL 1565673 [3d Dept 2015], quoting UCC 3–301 ; see also Glens Falls Indem. Co. v. Chase Natl. Bank, 257 N.Y. 441, 445 [1931] ).
"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" ( Onewest Bank, F.S.B. v. Mazzone, 130 A.D.3d 1399, 1400, 15 N.Y.S.3d 505 [2015] ; seeAurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ; Goldman Sachs Mtge. Co. v. Mares, 166 A.D.3d 1126, 1129, 87 N.Y.S.3d 665 [2018] ). In assessing Supreme Court's resolution of the standing issue after a nonjury trial, we independently review the weight of the evidence and, while according appropriate deference to the court's credibility determinations and factual findings, determine the judgment warranted by the record (seeHSBC Bank USA, N.A. v. Corazzini, 148 A.D.3d at 1315, 49 N.Y.S.3d 202 ; Nationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1295, 983 N.Y.S.2d 705 [2014], lv denied 24 N.Y.3d 905, 995 N.Y.S.2d 713, 20 N.E.3d 659 [2014] ). At trial, plaintiff produced, among other things, the mortgage and the original "wet ink" note, which had been endorsed in blank without recourse by a vice-president of WaMu.
“[W]here [a] plaintiff possesses a note that, on its face or by allonge, contains an indorsement in blank or bears special indorsement payable to the order of the plaintiff,” such party is a holder of the note and entitled to enforce the instrument (Wells Fargo Bank, NA v. Ostiguy, 127 A.D.3d at 1376, 8 N.Y.S.3d 669; see Nationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1296, 983 N.Y.S.2d 705 [2014], lv. denied24 N.Y.3d 905, 2014 WL 4637016 [2014]; see also Hartford Acc. & Indem. Co. v. American Express Co., 74 N.Y.2d 153, 159, 544 N.Y.S.2d 573, 542 N.E.2d 1090 [1989] ). Here, Battin's affidavit established that, prior to the commencement of the action, plaintiff possessed the underlying note indorsed in blank by AHMA ( compare Bank of Am., N.A. v. Kyle, 129 A.D.3d at 1169, 13 N.Y.S.3d 253).
When a plaintiff demonstrates that upon commencement of the action it possessed a note, indorsed in blank, by way of physical delivery, New York has consistently found the plaintiff to have sufficient interest in the enforcement of the debt to support standing in a foreclosure action. See, e.g., Aurora Loan Servs. v. Taylor, 25 N.Y.3d at 361-62, 12 N.Y.S. 3d at 615-16; Deutsche Bank Nat'l Tr. Co. v. Monica, 131 A.D.3d at 738-39, 15 N.Y.S.3d at 865; Nationstar Mortg., LLC v. Davidson, 116 A.D.3d 1294, 1295-96, 983 N.Y.S.2d 705, 707 (3d Dep't 2014); Mortgage Elec. Registration Sys. v. Coakley, 41 A.D.3d at 674, 838 N.Y.S.2d at 623. Accordingly, the award of summary judgment to defendants based on Eastern's lack of standing is vacated.
In both cases, there was a dispute over whether the plaintiff had an original note at the time their complaints were filed. See B & H Fla. Notes LLC v. Ashkenazi, 51 N.Y.S.3d 59, 149 A.D.3d 401, 403 (1st Dep't 2017) (reversing a grant of summary judgment where "plaintiff was inconsistent as to whether it physically held the note at the time it commenced this foreclosure action"); Nationstar Mortg., LLC v. Davidson, 983 N.Y.S.2d 705, 116 A.D.3d 1294, 1295 (3rd Dep't 2014) (upholding a bench trial determination that a plaintiff had possession of an original note at the time they filed their complaint). By contrast, here, it is undisputed that Plaintiff had an original Note when the Complaint was filed.
Accordingly, the referee determined that plaintiff established its standing to commence this action and recommended that Supreme Court grant it judgment on the merits and appoint another referee to compute the amount due. Given the foregoing, and according "great weight" to the referee's determination that plaintiff had standing at the time the action was commenced (Sutton v Burdick, 135 A.D.3d at 1018 [internal quotation marks and citations omitted]), we find that Supreme Court properly confirmed the report and entered judgment on the merits in plaintiff's favor (see Flagstar Bank, F.S.B. v Konig, 153 A.D.3d at 790-791; see also JPMorgan Chase Bank N.A. v Futterman, 173 A.D.3d 1496, 1497-1498 [3d Dept 2019]; Nationstar Mtge., LLC v Davidson, 116 A.D.3d 1294, 1295-1296 [3d Dept 2014], lv denied 24 N.Y.3d 905 [2014]). Defendant's remaining contentions, to the extent not specifically addressed herein, have been examined and are found to be lacking in merit.
Notwithstanding, "the court, at any time, may allow a party to amend or withdraw any admission on such terms as may be just" (see CPLR 3123[b] ; Webb v. Tire & Brake Distrib., Inc., 13 A.D.3d at 838, 786 N.Y.S.2d 636 ). Although we do not condone plaintiff's neglect to respond to the notice to admit (seeKowalski v. Knox, 293 A.D.2d 892, 892–893, 741 N.Y.S.2d 291 [2002] ; Howlan v. Rosol, 139 A.D.2d at 801, 526 N.Y.S.2d 674 ), we find no error in Supreme Court's rejection of defendants’ notice to admit, inasmuch as it sought admissions of disputed issues of fact, disputed matters that go to the heart of the controversy and documents outside the knowledge of plaintiff (seeNationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1296, 983 N.Y.S.2d 705 [2014], lv denied 24 N.Y.3d 905, 2014 WL 4637016 [2014] ; see alsoLewis v. DiMaggio, 151 A.D.3d at 1298, 58 N.Y.S.3d 192 ; Eddyville Corp. v. Relyea, 35 A.D.3d at 1066, 827 N.Y.S.2d 315 ; Howlan v. Rosol, 139 A.D.2d at 802, 526 N.Y.S.2d 674 ). Nor can defendants use CPLR 3123 in this manner to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial (seeGenna v. Klempner, 195 A.D.3d 444, 444, 144 N.Y.S.3d 853 [2021] ; 32nd Ave. LLC v. Angelo Holding Corp., 134 A.D.3d 696, 698, 20 N.Y.S.3d 420 [2015] ; Voigt v. Savarino Constr. Corp., 94 A.D.3d 1574, 1574, 942 N.Y.S.2d 860 [2012] ).
Further, defendant never relied upon a claim of a recent fabrication by claimant; instead, defendant maintained throughout its case that claimant's explanation of how the stabbing occurred had been false from its inception such that the hearsay exception for a prior consistent statement was not available under the circumstances (seePeople v. McDaniel, 81 N.Y.2d at 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. Davis, 44 N.Y.2d 269, 278, 405 N.Y.S.2d 428, 376 N.E.2d 901 [1978] ; People v. Watson, 163 A.D.3d at 865, 81 N.Y.S.3d 449 ; Mooney v. Osowiecky, 235 A.D.2d 603, 604, 651 N.Y.S.2d 713 [1997] ). Additionally, even assuming that the Court of Claims erred in not admitting claimant's statement to the sheriff's deputy and/or her written statement to police, on the record before us, we find any such error to be harmless, as the proffered evidence would not have had a substantial influence on bringing about a different verdict (see CPLR 2002 ; Nationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1296, 983 N.Y.S.2d 705 [2014], lv denied 24 N.Y.3d 905, 2014 WL 4637016 [2014] ; Braunsdorf v. Haywood, 295 A.D.2d 731, 733, 743 N.Y.S.2d 623 [2002] ; see alsoPeople v. Hamilton, 176 A.D.3d 1505, 1508–1509 [2019], lvs denied 34 NY3d 1126, 1128, 118 N.Y.S.3d 542, 555, 141 N.E.3d 498, 511 [2020]). To the extent not specifically addressed, claimant's remaining contentions have been reviewed and found to be without merit.