Opinion
2017-03873 Index No. 25109/11
09-18-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Daniel CALABRO, etc., et al., Appellants, et al., Defendant.
Charles H. Wallshein, Melville, NY, for appellants. Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.
Charles H. Wallshein, Melville, NY, for appellants.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion to confirm the Referee's report is denied, and the Referee's report is rejected.
The plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendants Daniel Calabro and Joanne Calabro (hereinafter together the defendants), alleging that they defaulted on their loan payments. The plaintiff moved, inter alia, for summary judgment. Upon reargument and renewal, the plaintiff was awarded summary judgment, and a Referee was appointed to compute the amount due. In an order and judgment of foreclosure and sale entered January 30, 2017, the Supreme Court, inter alia, granted the plaintiff's motion to confirm the Referee's report and directed the sale of the subject property. The defendants appeal.
We agree with the Supreme Court's conclusion that the plaintiff established its standing to commence this action by annexing to the complaint a copy of the note, endorsed to the plaintiff (see U.S. Bank N.A. v. Fisher , 169 A.D.3d 1089, 95 N.Y.S.3d 114 ; Nationstar Mtge., LLC v. Rodriguez , 166 A.D.3d 990, 992, 89 N.Y.S.3d 205 ; Wells Fargo Bank, N.A. v. Frankson , 157 A.D.3d 844, 845, 66 N.Y.S.3d 529 ; Deutsche Bank Natl. Trust Co. v. Carlin , 152 A.D.3d 491, 492, 61 N.Y.S.3d 16 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ; JPMorgan Chase Bank, N.A. v. Roseman , 137 A.D.3d 1222, 1223, 29 N.Y.S.3d 380 ). "[W]here the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date" ( U.S. Bank N.A. v. Fisher , 169 A.D.3d at 1091, 95 N.Y.S.3d 114 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d 355, 362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Logan , 146 A.D.3d 861, 863, 45 N.Y.S.3d 189 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d at 645, 37 N.Y.S.3d 286 ).
However, the Supreme Court should have denied the plaintiff's motion to confirm the Referee's report. "[T]he referee's findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records" ( Citimortgage, Inc. v. Kidd , 148 A.D.3d 767, 768–769, 49 N.Y.S.3d 482 ; see Bank of N.Y. Mellon v. Gordon , 171 A.D.3d 197, 208–209, 97 N.Y.S.3d 286 ).
The parties' remaining contentions are either without merit or need not be addressed in light of our determination.
DILLON, J.P., MILLER, HINDS–RADIX and CONNOLLY, JJ., concur.