| US Bank N.A. v Cange |
| 2012 NY Slip Op 04735 [96 AD3d 825] |
| June 13, 2012 |
| Appellate Division, Second Department |
| US Bank National Association, Respondent, v MarieCange, Appellant, et al., Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Marie Cange appeals (1) from an order ofthe Supreme Court, Queens County (Rosengarten, J.), dated September 20, 2011, which, uponher motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against herfor lack of standing, directed that a hearing be conducted on that issue, and (2) from an order ofthe same court entered December 22, 2011, which, after a hearing, denied her motion.
Ordered that the appeal from the order dated September 20, 2011, is dismissed; and it isfurther,
Ordered that the order entered December 22, 2011, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In July 2011, the plaintiff commenced this action to foreclose a mortgage. The defendantMarie Cange (hereinafter the appellant) moved pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against her on the ground that the plaintiff lacked standing tocommence the action. The Supreme Court, in an order dated September 20, 2011, directed that ahearing be conducted on the issue of standing. The hearing was held on December 14, 2011, atwhich time a Default Resolution Specialist employed by the plaintiff testified, inter alia, that theplaintiff came into possession of the subject original note from the original mortgagee inDecember 2002. The original note was produced and admitted into evidence without objection.In addition, a computer printout which indicated the loan number, the appellant's name, and theacquisition date of December 11, 2002, was admitted into evidence without objection. In theorder entered December 22, 2011, the Supreme Court denied the appellant's motion to dismissthe complaint insofar as asserted against her. She now appeals from both orders.
The appeal from the order dated September 20, 2011, must be dismissed, as it wassuperseded by the order entered December 22, 2011. In any event, "[a]n order directing a hearingto aid in the determination of a motion does not dispose of the motion and does not affect asubstantial right, and therefore is not appealable as of right" (Kornblum v Kornblum, 34 AD3d 749, [*2]751 [2006]; see CPLR 5701 [a] [2] [v]; Iodice v City of White Plains, 60 AD3d730 [2009]) and leave to appeal from the order dated September 20, 2011, was not granted.
In the order entered December 22, 2011, the Supreme Court properly denied the appellant'smotion pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against her forlack of standing. "In a mortgage foreclosure action, a plaintiff has standing where it is both theholder or assignee of the subject mortgage and the holder or assignee of the underlying note atthe time the action is commenced" (Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]). "As ageneral matter, once a promissory note is tendered and accepted by an assignee, the mortgagepasses as an incident to the note" (id. at 280). " 'Either a written assignment of theunderlying note or the physical delivery of the note prior to the commencement of the foreclosureaction is sufficient to transfer the obligation' " (HSBC Bank USA v Hernandez, 92 AD3d 843, 844 [2012], quotingU.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]; see U.S.Bank N.A. v Dellarmo, 94 AD3d 746 [2012]; US Bank N.A. v Madero, 80 AD3d 751, 752 [2011]).
Here, the uncontroverted evidence at the hearing established that the original note wasdelivered to the plaintiff in December 2002, and that it was in possession of it at the time theaction was commenced in July 2011, as well as on the date of the hearing. As such, the mortgagepassed to the plaintiff in December 2002 as an incident to the note. Therefore, the appellantfailed to demonstrate that she was entitled to dismissal of the complaint insofar a asserted againsther on the ground that the plaintiff lacked standing.
The appellant's remaining contentions either are without merit or have been renderedacademic by our determination.
Accordingly, the Supreme Court properly denied the appellant's motion pursuant to CPLR3211 (a) (3) to dismiss the complaint insofar as asserted against her. Dillon, J.P., Dickerson, Halland Sgroi, JJ., concur.