| Nationstar Mtge., LLC v Davidson |
| 2014 NY Slip Op 02658 [116 AD3d 1294] |
| April 17, 2014 |
| Appellate Division, Third Department |
| Nationstar Mortgage, LLC, as Assignee of Aurora LoanServices, LLC, Respondent, v Martin J. Davidson, Appellant, et al.,Defendants. |
—[*1] Knuckles, Komosinski & Elliott, LLP, Elmsford (Fincey John of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Devine, J.), entered January8, 2013 in Columbia County, upon a decision of the court in favor of plaintiff.
Aurora Loan Services, LLC commenced this foreclosure action in September 2009alleging that defendant Martin J. Davidson (hereinafter defendant) defaulted on a notesecured by a consolidated mortgage on his real property. Following unsuccessful motionsfor summary judgment, Supreme Court held a nonjury trial on the issue of standing. Attrial, Aurora's employee testified that Aurora was in physical possession of the note as ofJune 2009, when the collateral file was transferred to Aurora and the original documentswere placed in its vault. The note had an allonge with multiple indorsements, the finalone being in blank. A screenshot of Aurora's document tracking system reflected itspossession of the note and mortgage as of June 2009, and the employee testified that theindorsements were on the allonge at that time. Aurora also established that theconsolidated mortgage was assigned to it in July 2009.
In opposition, defendant relied on prior affidavits submitted by Aurora in the action,one of which included, as an exhibit, a copy of the allonge without the indorsement inblank. [*2]Aurora's employee testified, however, that thiswas an earlier image of the note that would have been scanned into Aurora's electronicfile when the original documents were briefly in Aurora's possession in 2007, and thecopy of the allonge attached to the affidavit did not reflect the note as it existed in June2009, when it was redelivered to Aurora and placed in its vault. Supreme Court,accepting Aurora's evidence that it was in physical possession of the note with theindorsement in blank at the time the action was commenced, concluded that Aurora hadstanding and, in light of defendant's uncontested default, granted a judgment offoreclosure and issued an order of reference.[FN*]Defendant appeals.
We will independently review the weight of the evidence in a nonjury trial and, whileaccording appropriate deference to the trial judge's credibility assessments and factualfindings, grant the judgment warranted by the record (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Chase Manhattan Bank vDouglas, 61 AD3d 1135, 1136 [2009]; Eddyville Corp. v Relyea, 35 AD3d 1063, 1064-1065[2006]). In doing so here, we find no basis to disturb Supreme Court's determination toaccept the testimony of Aurora's employee that both the note with the indorsement inblank and the mortgage were in Aurora's physical possession prior to the commencementof the action. Accordingly, Aurora has standing as the holder of the note and mortgage(see HSBC Bank USA, N.A. vSage, 112 AD3d 1126, 1127-1128 [2013], lv dismissed — NY3d—, 2014 NY Slip Op 68291 [2014]; Chase Home Fin., LLC v Miciotta, 101 AD3d 1307, 1307[2012]; Wells Fargo Bank, N.A.v Wine, 90 AD3d 1216, 1217 [2011]).
Defendant also argues that Supreme Court erred by failing to admit the prioraffidavits of a former Aurora employee into evidence, but defendant was able tocross-examine Aurora's witness regarding the contents of the affidavits and there is noindication that the proffered evidence "would have had a substantial influence on theoutcome of the case" (RichmorAviation, Inc. v Sportsflight Air, Inc., 82 AD3d 1423, 1426 [2011] [internalquotation marks and citation omitted]; see CPLR 2002; Matter of Emmitt-Klinger vKlinger, 48 AD3d 992, 993 [2008]). Further, we find no error in SupremeCourt's rejection of defendant's notice to admit, inasmuch as it sought admissions ofdisputed issues of fact (see CPLR 3123 [a]; Eddyville Corp. v Relyea, 35AD3d at 1066; Howlan v Rosol, 139 AD2d 799, 802 [1988]). We haveconsidered defendant's remaining contentions and find them to be without merit.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, with costs.
Footnote *: Supreme Court alsoamended the caption to substitute Nationstar Mortgage, LLC, Aurora's assignee, as thenamed plaintiff.