Opinion
8201 Index 452981/15
01-24-2019
NATIONSTAR MORTGAGE LLC, Plaintiff–Respondent, v. Badrul ISLAM, et al., Defendants, N.Y. Prime Holding LLC, Defendant–Appellant
Steven Zalewski & Associates, P.C., Kew Gardens (Matthew J. Routh of counsel), for appellant. Sandelands Eyet, LLP, New York (Peter A. Swift of counsel), for respondent.
Steven Zalewski & Associates, P.C., Kew Gardens (Matthew J. Routh of counsel), for appellant.
Sandelands Eyet, LLP, New York (Peter A. Swift of counsel), for respondent.
Sweeny, J.P., Tom, Kahn, Oing, Singh, JJ.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 20, 2017, which denied defendant N.Y. Prime Holding LLC,'s (Prime) motion to vacate an order granting plaintiff's motion for summary judgment on default, unanimously affirmed, without costs.
Although Prime demonstrated a reasonable excuse for failing to oppose plaintiff's motion for summary judgment, it did not demonstrate a potentially meritorious defense based on plaintiff's lack of standing to bring this mortgage foreclosure action (see Expo Dev. Corp. v. 824 S.E. Blvd. Realty Corp., 113 A.D.3d 549, 549, 978 N.Y.S.2d 852 [1st Dept. 2014] ; CPLR 5015[a] ). In support of its summary judgment motion, plaintiff established prima facie that it had standing to bring this foreclosure action by submitting an affidavit of an employee with personal knowledge of its business records, who averred that the underlying note was in its physical possession at the time the action was commenced and who annexed a true copy of the original note (see Bank of N.Y. Mellon v. Knowles, 151 A.D.3d 596, 597, 57 N.Y.S.3d 473 [1st Dept. 2017] ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 644–645, 37 N.Y.S.3d 286 [2d Dept. 2016] ; JPMorgan Chase Bank, N.A. v. Roseman, 137 A.D.3d 1222, 1223, 29 N.Y.S.3d 380 [2d Dept. 2016] ). Where the original note is proffered, "it is unnecessary to give factual details of the delivery to establish that possession was obtained prior to a particular date" ( Knowles, 151 A.D.3d at 597, 57 N.Y.S.3d 473 ).
Although Prime further asserted that it was entitled to discovery concerning plaintiff's possession of the note and the underlying assignments, it did not show that facts essential to justify opposition exist but could not be stated, such that plaintiff would not be entitled to summary judgment ( CPLR 3212[f] ).