| CWCapital Asset Mgt., LLC v Great Neck Towers, LLC |
| 2012 NY Slip Op 06911 [99 AD3d 850] |
| October 17, 2012 |
| Appellate Division, Second Department |
| CWCapital Asset Management, LLC, Respondent, v GreatNeck Towers, LLC, et al., Appellants. |
—[*1] Venable LLP, New York, N.Y. (Edward A. Smith, and Gregory A. Cross and Heather DeansFoley, pro hac vice, of counsel), for respondent.
In an action to foreclose a mortgage, the defendants appeal from an order of the SupremeCourt, Nassau County (Warshawsky, J.), dated May 5, 2010, which denied their motion pursuantto CPLR 3211 (a) (3) to dismiss the complaint for lack of standing.
Ordered that the order is affirmed, with costs.
On or about October 24, 2006, the defendants executed a note in the amount of $46.5 millionin favor of CIBC, Inc. The note was secured by a mortgage on commercial real property locatedin Great Neck. Through various assignments and mergers, and a Pooling and ServicingAgreement (hereinafter the PSA), ownership of the note and mortgage was transferred to theRegistered Holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC17,Commercial Mortgage Pass-Through Certificates, Series 2006-CIBC17 (hereinafter the Trust),Bank of America, N.A. (hereinafter Bank of America), became the Trustee for the Trust, and theplaintiff, CWCapital Asset Management, LLC (hereinafter CWCapital), became the SpecialServicer of the loan.
In October 2009 the defendants allegedly defaulted on the note. In January 2010 CWCapital,solely in its capacity as Special Servicer for Bank of America, as Trustee for the Trust,commenced this action to foreclose the mortgage. The defendants moved pursuant to CPLR 3211(a) (3) to dismiss the complaint for lack of standing. The Supreme Court denied the motion. Thedefendants appeal, and we affirm.
Contrary to the defendants' contention, CWCapital has standing to commence thisforeclosure action because the complaint identified the Trust as the owner of the note andmortgage, the action was expressly maintained in CWCapital's capacity as servicing agent, and,in the PSA, Bank of America's predecessor, as the Trustee for the Trust, delegated to CWCapitalthe authority to act with respect to the subject mortgage (see CWCapital Asset Mgt. LLC v Charney-FPG 114 41st St., LLC, 84AD3d 506, 506 [2011]; Fairbanks Capital Corp. v Nagel, 289 AD2d 99, 100[2001]).[*2]
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendants' motion pursuant to CPLR3211 (a) (3) to dismiss the complaint for lack of standing. Florio, J.P., Balkin, Belen andChambers, JJ., concur.