Opinion
7715 7716 7717 Index 850097/13
12-04-2018
U.S. BANK NATIONAL ASSOCIATION, etc., Plaintiff–Appellant, v. Darryl JONES, etc., Defendant–Respondent, Criminal Court of the City of New York, et al., Defendants.
Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for appellant. Law Office of Daniel R. Miller, Brooklyn (Daniel R. Miller of counsel), for respondent.
Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for appellant.
Law Office of Daniel R. Miller, Brooklyn (Daniel R. Miller of counsel), for respondent.
Renwick, J.P., Tom, Webber, Kahn, Moulton, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about November 18, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its foreclosure action, unanimously reversed, on the law, without costs and the motion granted. The Clerk is directed to enter judgment accordingly. Appeals from orders (same court and Justice), entered on or about October 22, 2015 and March 6, 2017, unanimously dismissed, without costs, as academic.Contrary to the IAS court's finding, plaintiff eliminated all fact issues as to its standing to foreclose by annexing the indorsed note to the complaint (see Bank of N.Y. Mellon v. Knowles, 151 A.D.3d 596, 597, 57 N.Y.S.3d 473 [1st Dept. 2017] ).
We decline to consider defendant's new factual argument, raised for the first time on appeal, that the allonge was not firmly affixed to the note. This argument is fact based, not a question of law, and plaintiff could have responded by affidavit or otherwise below—so that it could have been avoided (cf. Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408, 884 N.Y.S.2d 24 [1st Dept. 2009] ). Moreover, there is simply nothing in the record to support counsel's new factual assertion.
As such, plaintiff was entitled to summary judgment.
In light of our decision on the first order appealed from, the appeals from the other orders are moot.