Opinion
No. 2019-06534 Index No. 11773/13
07-06-2022
U.S. Bank National Association, etc., respondent, v. Valerie DeSalvo, appellant, et al., defendants.
Steven Rabitz, Brooklyn, NY, for appellant. Woods Oviatt Gilman, LLP, Rochester, NY (Michael T. Jablonski of counsel), for respondent.
Steven Rabitz, Brooklyn, NY, for appellant.
Woods Oviatt Gilman, LLP, Rochester, NY (Michael T. Jablonski of counsel), for respondent.
MARK C. DILLON, J.P. COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Valerie DeSalvo appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated May 1, 2019. The order denied that defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her, or, in the alternative to compel the production of certain documents, including the original consolidated note.
ORDERED that the order is affirmed, with costs.
In June 2013, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Valerie DeSalvo (hereinafter the defendant). The plaintiff alleged, inter alia, that the defendant defaulted on certain payments she was required to make pursuant to a consolidated note that she had entered into in January 2007, which superseded prior notes. In her answer, the defendant asserted, among other things, that the plaintiff did not have standing on the ground that the consolidated note lacked a proper endorsement to the plaintiff.
As is relevant to this appeal, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her on the grounds that the plaintiff failed to establish that it complied with RPAPL 1304, and failed to comply with discovery because the plaintiff did not produce for inspection, inter alia, the original consolidated note and the original notes that preceded the consolidated note to establish standing. In the alternative, the defendant sought to compel production of those documents (see CPLR 3124). In an order dated May 1, 2019, the Supreme Court denied the defendant's motion, determining that the plaintiff's production of an attorney-certified copy of the consolidated note obviated the need for the plaintiff to produce the original consolidated note for inspection, and the defendant failed to establish that the plaintiff did not comply with RPAPL 1304. The defendant appeals.
The defendant executed a consolidated note which superseded prior notes that she had executed (see Deutsche Bank Natl. Trust Co. v Goldstone, 197 A.D.3d 1148, 1149). The plaintiff's production of a copy of the consolidated note, executed by the defendant, and endorsed to the plaintiff was sufficient; the plaintiff was not required to produce the original consolidated note (see JP Morgan Chase Bank, N.A. v Caliguri, 36 N.Y.3d 953, 954; Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 362).
In order to succeed on her motion to dismiss on the ground that the plaintiff failed to comply with RPAPL 1304, the defendant was required to establish that the plaintiff did not comply with RPAPL 1304. Here, the defendant failed to meet that burden (see LNV Corp. v Allison, __ A.D.3d __, 2022 NY Slip Op 03716 [2d Dept]; see also Wells Fargo Bank, N.A. v DeFeo, 200 A.D.3d 1105, 1106; Nationstar Mtge., LLC v Matles, 185 A.D.3d 703, 707).
The defendant's remaining contentions are without merit.
DILLON, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.