Opinion
2017–05358 Index No. 9620/13
01-13-2021
WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent, v. Ann REED, appellant, et al., defendants.
Bilosi Law Group, P.C., New York, N.Y. (Steven Alexander Bilosi and Aveet Basnyat of counsel), for appellant. Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Kenneth J. Flickinger of counsel), for respondent.
Bilosi Law Group, P.C., New York, N.Y. (Steven Alexander Bilosi and Aveet Basnyat of counsel), for appellant.
Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Kenneth J. Flickinger of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Ann Reed appeals from a judgment of foreclosure and sale of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 27, 2017. The judgment of foreclosure and sale, insofar as appealed from, upon a decision of the same court dated July 13, 2016, made after a nonjury trial, inter alia, directed the sale of the subject property.
ORDERED that the judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendant Ann Reed (hereinafter the defendant), among others, to foreclose a mortgage. After a nonjury trial, the Supreme Court, in a decision dated July 13, 2016, found, inter alia, that the defendant had defaulted on her obligations under the subject note and mortgage. Thereafter, the court issued a judgment of foreclosure and sale, among other things, directing the sale of the subject property. The defendant appeals, and we affirm the judgment of foreclosure and sale insofar as appealed from.
To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Wells Fargo Bank, NA v. Madlen Apt, 179 A.D.3d 1145, 118 N.Y.S.3d 155 ). Additionally, where, as here, a plaintiff's standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief (see id. ). A plaintiff in a mortgage foreclosure action establishes its standing by demonstrating that "it was the holder or assignee of the underlying note at the time the action was commenced" ( US Bank N.A. v. Nelson, 169 A.D.3d 110, 114, 93 N.Y.S.3d 138 ; see Wells Fargo Bank, N.A. v. Frankson, 157 A.D.3d 844, 845, 66 N.Y.S.3d 529 ).
In reviewing a determination made after a nonjury trial, this Court's power is as broad at that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Countrywide Home Loans, Inc. v. Gibson, 157 A.D.3d 853, 855, 70 N.Y.S.3d 580 ).
Contrary to the defendant's contention, the Supreme Court's determinations that the plaintiff established its entitlement to a judgment of foreclosure and sale, and that it had standing to commence the action, are supported by the record. The defendant's remaining contentions are without merit. Since the court's determinations were warranted by the facts, we decline to disturb them.
DILLON, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.