| Citimortgage, Inc. v Stosel |
| 2011 NY Slip Op 08319 [89 AD3d 887] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Citimortgage, Inc., Respondent, v Usher Stosel, Appellant, etal., Defendants. |
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Katz & Rychik, P.C., New York, N.Y. (Bennett R. Katz of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Usher Stosel appeals, as limited by his brief,from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated April 12, 2010,as granted those branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against him and for an order of reference, and, in effect, denied that branch of hiscross motion which was to dismiss the complaint insofar as asserted against him for lack of standing.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branchesof the plaintiff's motion which were for summary judgment on the complaint insofar as asserted againstthe defendant Usher Stosel and for an order of reference are denied, and that branch of the crossmotion of the defendant Usher Stosel which was to dismiss the complaint insofar as asserted againsthim for lack of standing is granted.
Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by thedefendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see US Bank N.A. v Madero, 80 AD3d751, 752 [2011]; U.S. Bank, N.A. vCollymore, 68 AD3d 752, 753 [2009]). A plaintiff establishes its standing in a mortgageforeclosure action by demonstrating that it is both the holder or assignee of the subject mortgage andthe holder or assignee of the underlying note, "either by physical delivery or execution of a writtenassignment prior to the commencement of the action" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 108 [2011]).Moreover, "an assignment of the mortgage without assignment of the underlying note or bond is anullity" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Bank of N.Y. v Silverberg, 86 AD3d 274, 280 [2011]).
Contrary to the determination of the Supreme Court, the plaintiff failed to demonstrate that it hadstanding to commence this foreclosure action, since it failed to establish how or when it became thelawful holder of the note either by delivery or valid assignment of the note to it (see e.g. Bank ofN.Y. v Silverberg, 86 AD3d at 280-283; Aurora Loan Servs., LLC v Weisblum, 85AD3d at 109; US Bank N.A. v Madero, 80 AD3d at 752-753; U.S. Bank, N.A. vCollymore, 68 AD3d at 754). Accordingly, under the circumstances presented, those branches ofthe plaintiff's motion which were for summary judgment on the complaint insofar as asserted against thedefendant Usher Stosel and for an order of reference should have been denied, and that branch of the[*2]cross motion of the defendant Usher Stosel which was to dismissthe complaint insofar as asserted against him for lack of standing should have been granted.
In view of the foregoing, we do not reach the remaining contentions of the defendant Usher Stosel.Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.