Opinion
488.1 CA 19-01987
08-26-2021
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff-Respondent, v. Kenneth H. PIERI, KenSu-1, L.P., Defendants-Appellants, et al., Defendant.
LAW OFFICE OF GARY R. EBERSOLE, GRAND ISLAND (GARY R. EBERSOLE OF COUNSEL), FOR DEFENDANTS-APPELLANTS. FEIN, SUCH & CRANE, LLP, ROCHESTER, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LAW OFFICE OF GARY R. EBERSOLE, GRAND ISLAND (GARY R. EBERSOLE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
FEIN, SUCH & CRANE, LLP, ROCHESTER, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this mortgage foreclosure action against, among others, Kenneth H. Pieri and KenSu-1, L.P. (defendants). Plaintiff moved for, inter alia, summary judgment on the amended complaint and the appointment of a referee, and defendants cross-moved for, inter alia, summary judgment dismissing the amended complaint against them. Supreme Court granted the motion and denied the cross motion. We affirm.
Defendants contend that plaintiff failed to meet its burden on the motion of demonstrating its standing to commence the foreclosure action because it failed to establish that it was the holder or assignee of the original consolidated note secured by the consolidated mortgage. We reject that contention. "Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( Deutsche Bank Natl. Trust Co. v. Brewton , 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 [2d Dept. 2016] [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Spitzer , 131 A.D.3d 1206, 1206-1207, 18 N.Y.S.3d 67 [2d Dept. 2015] ). Where, as here, "the plaintiff's standing has been placed in issue by reason of the defendant[s’] answer, the plaintiff additionally must prove its standing as part of its prima facie showing" ( HSBC Bank USA, N.A. v. Baptiste , 128 A.D.3d 773, 774, 10 N.Y.S.3d 255 [2d Dept. 2015] ). "In an action to foreclose a mortgage, the plaintiff has standing where, at the time the action is commenced, it is the holder or assignee of both the subject mortgage and the underlying note" ( NNPL Trust Series 2012-1 v. Lunn , 149 A.D.3d 1552, 1553, 53 N.Y.S.3d 774 [4th Dept. 2017] [internal quotation marks omitted]). "[P]hysical 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" ( id. at 1553-1554, 53 N.Y.S.3d 774 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d 355, 360-361, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ). Where "the note is endorsed in blank, the plaintiff may establish standing by demonstrating that it had physical possession of the original note at the time the action was commenced ... The plaintiff may do so through an affidavit of an individual swearing to such possession following a review of admissible business records" ( Bank of N.Y. Mellon v. Anderson , 151 A.D.3d 1926, 1927, 58 N.Y.S.3d 809 [4th Dept. 2017] ; see DLJ Mtge. Capital, Inc. v. Huzair , 158 A.D.3d 1143, 1144, 72 N.Y.S.3d 654 [4th Dept. 2018] ). Here, plaintiff established standing in its moving papers by demonstrating, inter alia, that it possessed the consolidated note at the time it commenced the action (see DLJ Mtge. Capital, Inc. , 158 A.D.3d at 1144, 72 N.Y.S.3d 654 ; NNPL Trust Series 2012-1 , 149 A.D.3d at 1554, 53 N.Y.S.3d 774 ; JPMorgan Chase Bank, N.A. v. Kobee , 140 A.D.3d 1622, 1624, 32 N.Y.S.3d 767 [4th Dept. 2016] ). The presence of a second, unendorsed copy of the consolidated note attached as an exhibit to the consolidation, extension, and modification agreement did not create a triable issue of fact warranting denial of the motion (see HSBC Bank USA, N.A. v. Chabot , 191 A.D.3d 648, 650, 140 N.Y.S.3d 584 [2d Dept. 2021] ).
We have reviewed defendants’ remaining contentions and conclude that none warrants modification or reversal of the order and judgment.