| OneWest Bank FSB v Carey |
| 2013 NY Slip Op 01480 [104 AD3d 444] |
| March 7, 2013 |
| Appellate Division, First Department |
| OneWest Bank FSB, Respondent, v GregoryCarey, Appellant, et al., Defendants. |
—[*1] Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bayshore (Joseph F. Battista ofcounsel), for respondent.
Order, Supreme Court, New York County (Carol E. Huff, J.), entered October 7,2011, which denied defendant Gregory Carey's motion to dismiss the complaint,unanimously affirmed, without costs.
"In a mortgage foreclosure action, a plaintiff has standing where it is both the holderor assignee of the subject mortgage and the holder or assignee of the underlying note atthe time the action is commenced" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2d Dept2009]). Here, the evidence submitted in opposition to defendant's motion, including theaffidavit from plaintiff's employee, established that an assignment of the note had beeneffectuated by physical delivery of the note prior to the commencement of the instantaction (see Bank of N.Y.Mellon Trust Co. NA v Sachar, 95 AD3d 695 [1st Dept 2012]).
We have considered defendant's remaining contentions, including the challenges tothe evidence submitted in opposition to the motion, and find them unavailing.Concur—Andrias, J.P., Friedman, Acosta, Freedman and Clark, JJ.