| Bank of N.Y. Mellon Trust Co. NA v Sachar |
| 2012 NY Slip Op 03964 [95 AD3d 695] |
| May 22, 2012 |
| Appellate Division, First Department |
| Bank of New York Mellon Trust Company NA,Respondent, v Eddie Sachar, Appellant, et al., Defendants. |
—[*1] Hogan Lovells US, LLP, New York (Chava Brandriss of counsel), for respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about March 11,2011, which, inter alia, granted plaintiff's motion for summary judgment on its complaint asagainst defendant Sachar, unanimously affirmed, without costs.
Plaintiff proved its standing to commence this foreclosure action by demonstrating that itwas both the holder or assignee of the subject mortgage and the holder or assignee of theunderlying note at the time the action was commenced (see U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2009]).Defendant is correct that, although Mortgage Electronic Registration System (MERS) validlyassigned the mortgage to plaintiff, and the assignment was properly recorded in the publicrecords, MERS had not been given any interest in the underlying note by the lender (see Bank of N.Y. v Silverberg, 86AD3d 274, 283 [2011]). However, the complaint and the documents annexed to plaintiff'smotion establish that an assignment of the note had been effectuated by physical delivery of thenote before this action was commenced (see id. at 280; Collymore, 68 AD3d at754). Concur—Tom, J.P., Sweeny, Renwick, Freedman and Abdus-Salaam, JJ.