Opinion
2014-07-2
PEAK FINANCIAL PARTNERS, INC., respondent, v. Joseph BROOK, et al., appellants, et al., defendant.
Jon A. Lefkowitz, Brooklyn, N.Y., for appellants. Peter T. Roach & Associates, P.C., Syosseet, N.Y. (Michael C. Manniello of counsel), for respondent.
Jon A. Lefkowitz, Brooklyn, N.Y., for appellants. Peter T. Roach & Associates, P.C., Syosseet, N.Y. (Michael C. Manniello of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Joseph Brook and Zahava Brook appeal from an order of the Supreme Court, Kings County (Baily–Schiffman, J.), entered May 14, 2013, which granted the plaintiff's motion for summary judgment on the complaint and denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
“ ‘Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant[s], it is incumbent upon the plaintiff to prove its standing to be entitled to relief’ ” ( Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 649–650, 981 N.Y.S.2d 547, quoting Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182). In a mortgage foreclosure action, a plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced ( see HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120;Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532). 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 ( see HSBC Bank USA v. Hernandez, 92 A.D.3d at 844, 939 N.Y.S.2d 120).
Here, in support of its motion for summary judgment on the complaint, the plaintiff demonstrated that it had standing by offering proof that the note and mortgage were assigned to it prior to the commencement of this action. The plaintiff further established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default ( see Kondaur Capital Corp., v. McCary, 115 A.D.3d at 650, 981 N.Y.S.2d 547). In opposition, the defendants Joseph Brook and Zahava Brook (hereinafter together the appellants) failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The appellants failed to establish that this action is barred by Business Corporation Law § 1312, as they failed to overcome the presumption that the plaintiff does business in California, its state of incorporation, and not in New York ( seeBusiness Corporation Law § 1312[a]; Household Bank [ SB ], N.A. v. Mitchell, 12 A.D.3d 568, 785 N.Y.S.2d 116).
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the complaint, and properly denied the appellants' cross motion for summary judgment dismissing the complaint insofar as asserted against them. CHAMBERS, J.P., AUSTIN, HINDS–RADIX and DUFFY, JJ., concur.