Opinion
11-30-2016
U.S. BANK NATIONAL ASSOCIATION, etc., appellant, v. Nechama CHANIN, et al., respondents, et al., defendants.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Jessica L. Bookstaver and Gregory Savran of counsel), for appellant. Mortner Law Office, P.C., New York, NY (Moshe Mortner of counsel), for respondents.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Jessica L. Bookstaver and Gregory Savran of counsel), for appellant.
Mortner Law Office, P.C., New York, NY (Moshe Mortner of counsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (F.Rivera, J.), dated April 4, 2014, which granted the motion of the defendants Nechama Chanin and Zalman Chanin pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them on the ground that the plaintiff lacked standing.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Nechama Chanin and Zalman Chanin pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them is denied. “A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note” (Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414, citing Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; see HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 843, 939 N.Y.S.2d 120 ). “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” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ; see U.S. Bank N.A. v. Carnivale, 138 A.D.3d 1220, 1221, 29 N.Y.S.3d 643 ; Wells Fargo Bank, N.A. v. Charlaff, 134 A.D.3d 1099, 1099–1100, 24 N.Y.S.3d 317 ).
Here, the defendants Nechama Chanin and Zalman Chanin (hereinafter together the defendants) failed to demonstrate, as a matter of law, that they were entitled to the dismissal of the amended complaint insofar as asserted against them on the ground that the plaintiff lacked standing (see J.P. Morgan Chase Bank, N.A. v. Coleman, 119 A.D.3d 841, 842, 989 N.Y.S.2d 380 ; cf. Citimortgage, Inc. v. Klein, 140 A.D.3d 913, 914–915, 33 N.Y.S.3d 432 ; Wells Fargo Bank, N.A. v. Gallagher, 137 A.D.3d 898, 899, 28 N.Y.S.3d 84 ).
The defendants' remaining contention is improperly raised for the first time on appeal.
Accordingly, the Supreme Court erred in granting the defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.
The appellant's remaining contention need not be reached in light of our determination.
RIVERA, J.P., AUSTIN, HINDS–RADIX and MALTESE, JJ., concur.