Opinion
2016–05696 Index No. 505810/15
04-03-2019
WELLS FARGO BANK, N.A., respondent, v. Chaim LEFKOWITZ, appellant, et al., defendants.
Berg & David, PLLC, Brooklyn, N.Y. (Abraham David and Madeline Greenblatt of counsel), for appellant. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent.
Berg & David, PLLC, Brooklyn, N.Y. (Abraham David and Madeline Greenblatt of counsel), for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
In January 2005, the defendant Chaim Lefkowitz (hereinafter the defendant) executed a promissory note in favor of RBC Mortgage Company in the sum of $152,000. The note was secured by a mortgage on residential property in Brooklyn.
After the defendant defaulted on his payment obligations, Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for RBC Mortgage Company, commenced an action to foreclose the mortgage (hereinafter the first action). In an order dated May 1, 2008, the Supreme Court granted MERS's motion to discontinue the first action.
By assignment dated February 11, 2010, the mortgage allegedly was assigned by MERS to the plaintiff. On or about February 17, 2010, the plaintiff commenced an action to foreclose the mortgage (hereinafter the second action). On or about June 15, 2010, the plaintiff commenced another action to foreclose the mortgage (hereinafter the third action). By stipulations dated September 24, 2010, the second and third actions were discontinued.
On May 12, 2015, the plaintiff commenced this action to foreclose the mortgage. The defendant interposed an answer asserting several affirmative defenses, including the statute of limitations and the plaintiff's lack of standing. Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him on the grounds that the action was time-barred and the plaintiff lacked standing. The Supreme Court denied the motion, and the defendant appeals.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" ( EMC Mtge. Corp. v. Patella , 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ; see Kashipour v. Wilmington Sav. Fund Socy., FSB , 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ; Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ; Wells Fargo Bank, N.A. v. Cohen , 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ). An acceleration of a mortgage debt can occur "when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due" ( Milone v. U.S. Bank N.A. , 164 A.D.3d 145, 152, 83 N.Y.S.3d 524 ).
Contrary to the defendant's contention, he failed to sustain his initial burden of demonstrating, prima facie, that this action was untimely. In support of his motion, the defendant submitted, inter alia, the order dated May 1, 2008, discontinuing the first action, and what appears to be a printout of the docket from the first action. The printout indicates that the summons and complaint were filed on November 1, 2007. In his reply papers, the defendant submitted a copy of the summons and complaint filed in the first action. However, a party moving for summary judgment cannot meet his or her prima facie burden by submitting evidence for the first time in reply (see Arriola v. City of New York , 128 A.D.3d 747, 749, 9 N.Y.S.3d 344 ; 6014 Eleventh Ave. Realty, LLC v. 6014 AH, LLC , 114 A.D.3d 661, 662, 979 N.Y.S.2d 686 ; Cotter v. Brookhaven Mem. Hosp. Med. Ctr., Inc. , 97 A.D.3d 524, 525, 947 N.Y.S.2d 608 ). By failing to submit a copy of the summons and complaint filed in the first action along with his initial moving papers, the defendant failed to demonstrate that the first action, which apparently was commenced on November 1, 2007, constituted a valid election to accelerate the mortgage, since there was no evidence to demonstrate that the plaintiff's predecessor in interest elected to call due the entire amount secured by the mortgage. Inasmuch as the defendant failed to meet his prima facie burden on the issue of whether the action was untimely, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
"On a motion for summary judgment ‘the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied’ " ( Deutsche Bank Natl. Trust Co. v. Homar , 163 A.D.3d 522, 523, 80 N.Y.S.3d 409, quoting Deutsche Bank Trust Co. Ams. v. Vitellas , 131 A.D.3d 52, 59–60, 13 N.Y.S.3d 163 ; see Wells Fargo Bank, N.A. v. Talley , 153 A.D.3d 583, 585, 59 N.Y.S.3d 743 ). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" ( Deutsche Bank Trust Co. Ams. v. Vitellas , 131 A.D.3d at 60, 13 N.Y.S.3d 163 ; see U.S. Bank N.A. v. Guy , 125 AD3d 845, 847 ). "The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations made by the plaintiff in the pleadings" ( Citibank, N.A. v. Herman , 125 A.D.3d 587, 589, 3 N.Y.S.3d 379 ; see LGF Holdings, LLC v. Skydel , 139 A.D.3d 814, 814, 32 N.Y.S.3d 243 ).
"A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced" ( OneWest Bank, N.A v. FMCDH Realty, Inc. , 165 A.D.3d 128, 131, 83 N.Y.S.3d 612 ; see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d 355, 361, 34 N.E.3d 363 ). "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 ).
The complaint in this action alleged that the mortgage had been assigned to the plaintiff in 2010, and that the plaintiff was "the holder of the subject note and mortgage, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note." By failing to address whether the plaintiff possessed the note at the time the instant action was commenced, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him for lack of standing, since he failed to eliminate triable issues of fact as to whether the plaintiff had standing by virtue of the physical delivery of the note prior to the commencement of this action (see Aurora Loan Servs., LLC v. Komarovsky , 151 A.D.3d 924, 927, 58 N.Y.S.3d 96 ; U.S. Bank N.A. v. Chanin , 144 A.D.3d 1131, 41 N.Y.S.3d 431 ; LGF Holdings, LLC v. Skydel , 139 A.D.3d at 814–815, 32 N.Y.S.3d 243 ; Aurora Loan Servs., LLC v. Mercius , 138 A.D.3d 650, 652, 29 N.Y.S.3d 462 ; Deutsche Bank Trust Co. Ams. v. Vitellas , 131 A.D.3d at 59–60, 13 N.Y.S.3d 163 ). Since the defendant failed to meet his prima facie burden for summary judgment on the issue of standing, the sufficiency of the plaintiff's papers in opposition need not be considered (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
RIVERA, J.P., COHEN, HINDS–RADIX and MALTESE, JJ., concur.