| U.S. Bank N.A. v Pia |
| 2010 NY Slip Op 03909 [73 AD3d 752] |
| May 4, 2010 |
| Appellate Division, Second Department |
| U.S. Bank National Association, Respondent, v Lisa AnnPia et al., Defendants/Third-Party Plaintiffs-Appellants. GLM Mortgage Company et al.,Third-Party Defendants-Respondents. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), forplaintiff-respondent.
In an action to foreclose a mortgage, the defendants/third-party plaintiffs appeal from somuch of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated May 15, 2009, asdenied their cross motion for summary judgment dismissing the complaint, for summaryjudgment on the issue of liability on their counterclaims for relief pursuant to the FederalTruth-in-Lending Act (15 USC § 1601 et seq.), and for summary judgment on theissue of liability on the fifth cause of action asserted in the third-party complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this foreclosure action alleging that it was the holder of a note thatwas secured by a mortgage on the appellants' property in Carmel, New York. The complaintalleged that the appellants defaulted on their payment obligations.
In their amended verified answer and third-party complaint, the appellants asserted anaffirmative defense alleging that the plaintiff lacked standing to commence this action because itwas not the holder of the note and mortgage when the action was commenced. The appellantsalso asserted an affirmative defense and counterclaim based on the ground that they were entitledto rescind the loan agreement pursuant to the Federal Truth-in-Lending Act (15 USC §1601 et seq., hereinafter TILA). They asserted a separate counterclaim to recover actualand statutory damages for violations of TILA. Finally, the appellants asserted five causes ofaction against the third-party defendants (hereinafter the mortgage brokers), alleging in their fifthcause of action that the mortgage brokers had violated General Business Law § 349.
The plaintiff moved for summary judgment and for the appointment of a referee. Theappellants opposed the motion and cross-moved for summary judgment dismissing thecomplaint, for [*2]summary judgment on the issue of liability ontheir counterclaims, and for summary judgment on the issue of liability on the fifth cause ofaction asserted in the third-party complaint. The Supreme Court, inter alia, denied the appellants'cross motion in its entirety. The appellants appeal, and we affirm the order insofar as appealedfrom.
Contrary to the appellants' contention, they failed to establish, prima facie, that the plaintifflacked standing to commence this action inasmuch as there are issues of fact as to whether theplaintiff had standing by virtue of "physical delivery of the note prior to the commencement ofthe foreclosure action" (U.S. Bank,N.A. v Collymore, 68 AD3d 752, 754 [2009]; see Curtis v Moore, 152 NY 159,162 [1897]; LaSalle Bank Natl. Assn. vAhearn, 59 AD3d 911, 912 [2009]; Flyer v Sullivan, 284 App Div 697, 699[1954]).
Moreover, to the extent that the appellants seek to recover actual and statutory damagesunder TILA for deficient disclosures, they failed to demonstrate, prima facie, that the allegedviolations were "apparent on the face of the disclosure statement" (15 USC § 1641 [e] [1][A]). The appellants also failed to establish, prima facie, that they were entitled to rescind theloan transaction pursuant to TILA (see First Trust Natl. Assn. v Chiang, 242 AD2d 599,600 [1997]; April M's Enters. v Scott, 178 AD2d 572, 572 [1991]; see also 15USC § 1635 [a], [f]; 12 CFR 226.23 [a] [3]; WM Specialty Mtge., LLC v Sparano, 68 AD3d 987, 987 [2009]).
Furthermore, the appellants did not establish their entitlement to summary judgment on thefifth cause of action asserted in the third-party complaint alleging violations of General BusinessLaw § 349. In this regard they failed to demonstrate, prima facie, that the allegedlydeceptive acts were "likely to mislead a reasonable consumer acting reasonably under thecircumstances" (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85NY2d 20, 26 [1995]; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344[1999]; Karlin v IVF Am., 93 NY2d 282, 294 [1999]; see also Anesthesia Assoc. of MountKisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 473, 480 [2009]). They alsofailed to establish, prima facie, that the mortgage brokers' allegedly deceptive "acts or practices[had] a broad impact on consumers at large" (New York Univ. v Continental Ins. Co., 87NY2d 308, 320 [1995]; accordBiancone v Bossi, 24 AD3d 582, 583 [2005]; Lakehill Assoc., Inc. v 6077 Jericho Turnpike Realty Corp., 18 AD3d506, 508 [2005]; Lynch v McQueen, 309 AD2d 790, 792 [2003]; Teller v BillHayes, Ltd., 213 AD2d 141, 145 [1995]; United Knitwear Co. v North Sea Ins. Co.,203 AD2d 358, 359 [1994]; cf. Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d at344; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at25; Wilner v Allstate Ins. Co., 71AD3d 155, 164 [2010]).
The appellants' remaining contentions either are without merit or need not be addressed inlight of the foregoing determination. Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.