Opinion
6163 Index 850262/14
03-29-2018
NATIONSTAR MORTGAGE LLC, Plaintiff–Respondent, v. Agostino ACCARDO, Defendant–Appellant, New York City Environmental Control Board; etc., et al., Defendants.
Solomon Rosengarten, Brooklyn, for appellant. Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Solomon Rosengarten, Brooklyn, for appellant.
Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Sweeny, J.P., Renwick, Manzanet–Daniels, Kahn, Kern, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered February 1, 2017, which, insofar as appealed from, granted plaintiff's motion to restore the action to active status, for summary judgment, and for the appointment of a referee to compute the amount due, unanimously affirmed, without costs.
This foreclosure action was properly restored to active status pursuant to the terms of the dismissal order. The cases relied on by defendant are inapposite, because they involved failures to comply with discovery obligations, not a failure to timely file a dispositive motion.
Plaintiff established prima facie its standing to enforce the note, on which is it undisputed that defendant defaulted, by attaching the note to the complaint (see Bank of N.Y. Mellon v. Knowles, 151 A.D.3d 596, 57 N.Y.S.3d 473 [1st Dept. 2017] ). Plaintiff also submitted an affidavit by its vice president saying that plaintiff was in possession of the note as of October 3, 2012 (the action was commenced in August 2014), and attached corroborating documentary evidence.
In opposition, defendant failed to raise an issue of fact. Contrary to his contention, plaintiff's affidavit and attached documents are not hearsay; the affiant said that he personally reviewed loan records kept in the ordinary course of business and that he was personally familiar with plaintiff's record-keeping practices (see Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 8, 63 N.Y.S.3d 352 [1st Dept. 2017] ). Inconsistent statements in a prior affidavit submitted by plaintiff do not suffice, because they are contradicted by documentary evidence (see Bank of N.Y. v. 125–127 Allen St. Assoc., 59 A.D.3d 220, 873 N.Y.S.2d 279 [1st Dept. 2009] ). Having submitted proof that it was in physical possession of the note, plaintiff was not required to present proof of assignment (see U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept. 2016] ).