| Countrywide Home Loans, Inc. v Gress |
| 2009 NY Slip Op 08989 [68 AD3d 709] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Countrywide Home Loans, Inc., Appellant, v AnthonyGress, Respondent, et al., Defendants. |
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In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Nassau County (Feinman, J.), dated June 25, 2008, asgranted that branch of the motion of the defendant Anthony Gress which was to dismiss thecomplaint insofar as asserted against him pursuant to CPLR 3211 (a) (3).
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of themotion of the defendant Anthony Gress which was to dismiss the complaint insofar as assertedagainst him pursuant to CPLR 3211 (a) (3) on the ground that the plaintiff lacked standing tobring this action. In order to commence a foreclosure action, the plaintiff must have a legal orequitable interest in the subject mortgage (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204 [2009]; Katz vEast-Ville Realty Co., 249 AD2d 243 [1998]; Kluge v Fugazy, 145 AD2d 537, 538[1988]). "Where the plaintiff is the assignee of the mortgage and the underlying note at the timethe foreclosure action was commenced, the plaintiff has standing to maintain the action"(Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 [2003]; see WellsFargo Bank, N.A. v Marchione, 69 AD3d 204 [2009]; First Trust Natl. Assn. v Meisels, 234 AD2d 414 [1996]). Here, it isundisputed that the subject mortgage was not assigned to the plaintiff until July 5, 2007, morethan five months after the commencement of this action on January 22, 2007. Furthermore,although the July 5, 2007 assignment recited that it was effective retroactive to August 1, 2006,"a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosureaction commenced prior to the execution of the assignment" (Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 210 [2009]; see LaSalle Bank Natl. Assn. vAhearn, 59 AD3d 911, 912 [2009]).
In light of our determination, we need not reach the parties' remaining contentions. Skelos,J.P., Eng, Leventhal and Chambers, JJ., concur.