| Citibank, N.A. v Van Brunt Props., LLC |
| 2012 NY Slip Op 03974 [95 AD3d 1158] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Citibank, N.A., Appellant, v Van Brunt Properties, LLC,Respondent, et al., Defendants. |
—[*1] The Tzanides Law Firm, PLLC, New York, N.Y. (Kirk P. Tzanides of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Lewis, J.), dated March 4, 2011, which denied that branch of its motionwhich was for summary judgment on the complaint, its application for the appointment of areceiver, and its separate motion to substitute Wells Fargo Bank, N.A., as the plaintiff, and toamend the caption accordingly, and granted the cross motion of the defendant Van BruntProperties, LLC, for a judgment declaring that the plaintiff is not entitled to any interest,penalties, or fees on the subject note to the extent of declaring that the plaintiff is not entitled toany interest, penalties, or fees on the subject note from the date of the alleged default throughMarch 31, 2011.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdenied the plaintiff's application for the appointment of a receiver is deemed an application forleave to appeal from that portion of the order, and leave to appeal is granted (see CPLR5701 [c]); and it is further,
Ordered that the order is reversed, on the law, with costs, that branch of the plaintiff's motionwhich was for summary judgment on the complaint, the plaintiff's application for theappointment of a reciever, and the plaintiff's separate motion to substitute Wells Fargo Bank,N.A., as the plaintiff, and to amend the caption accordingly, are granted, and the cross motion ofthe defendant Van Brunt Properties, LLC, for a judgment declaring that the plaintiff is notentitled to any interest, penalties, or fees on the subject note is denied.
The Supreme Court erred in denying that branch of the plaintiff's motion which was forsummary judgment on the complaint and the plaintiff's application for the appointment of areceiver. A mortgagee establishes its prima facie entitlement to summary judgment in aforeclosure action where it produces both the mortgage and unpaid note, together with evidenceof the mortgagor's default (see Zanfini vChandler, 79 AD3d 1031, 1032 [2010]; HSBC Bank USA v Merrill, 37 AD3d 899, 900 [2007]; Household Fin. Realty Corp. of N.Y. vWinn, 19 AD3d 545, 546 [2005]). The burden then shifts to the defendant todemonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, suchas waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of theplaintiff" (Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [1997]).
Here, the plaintiff met its prima facie burden by submitting the mortgage, note, and [*2]evidence of default (see Swedbank, AB, N.Y. Branch v Hale Ave. Borrower, LLC, 89 AD3d922, 923 [2011]; Zanfini v Chandler, 79 AD3d at 1032). In opposition, the defendantmortgagor failed to raise a triable issue of fact as to any bona fide defense (see Citibank, N.A. v Silverman, 85AD3d 463, 464-466 [2011]; Rossrock Fund II, L.P. v Osborne, 82 AD3d 737 [2011];Manufacturers & Traders Trust Co. v Schlosser & Assoc., 242 AD2d 943 [1997];Massachusetts Mut. Life Ins. Co. v Gramercy Twins Assoc., 199 AD2d 214, 216-218[1993]).
Concomitantly, as the plaintiff contends, based on the language of the mortgage and note, itwas entitled to the appointment of a receiver (see Real Property Law § 254 [10];Maspeth Fed. Sav. & Loan Assn. vMcGown, 77 AD3d 890, 891 [2010]; see also Naar v Litwak & Co., 260 AD2d613, 614 [1999]).
The Supreme Court also erred in granting the defendant mortgagor's cross motion for ajudgment declaring that the plaintiff is not entitled to any interest, penalties, or fees on thesubject note to the extent of declaring that the plaintiff is not entitled to any interest, penalties, orfees on the note from the date of default through March 31, 2011. Since the defendant mortgagorfailed to demonstrate any basis for preventing the plaintiff from enforcing the terms of itsmortgage, the grant of such relief was not proper (see IndyMac Bank, F.S.B. v Yano-Horoski, 78 AD3d 895, 896[2010]; see also Levine v Infidelity, Inc., 285 AD2d 629, 630 [2001]).
Finally, contrary to the defendant mortgagor's contention, the documents submitted by theplaintiff established that the subject note and mortgage were validly assigned to Wells FargoBank, N.A., after the commencement of this action, and that Wells Fargo Bank, N.A., istherefore now the real plaintiff in interest. Under these circumstances, the Supreme Court shouldhave granted the plaintiff's motion to substitute Wells Fargo Bank, N.A., as the plaintiff in thisaction, and to amend the caption accordingly (see CPLR 1018, 3025 [b]; Deutsche Bank Trust Co., Ams. vStathakis, 90 AD3d 983 [2011]; Maspeth Fed. Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750,751 [2009]; East Coast Props. v Galang, 308 AD2d 431 [2003]). Skelos, J.P., Dickerson,Eng and Leventhal, JJ., concur.