| Kondaur Capital Corp. v McCary |
| 2014 NY Slip Op 01438 [115 AD3d 649] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Kondaur Capital Corporation,Respondent, v Rochelle McCary, Appellant, et al.,Defendant. |
—[*1] Lawrence & Walsh, P.C., Hempstead, N.Y. (Eric P. Wainer of counsel), for NSRealty Investors Group, LLC, as successor in interest to Kondaur CapitalCorporation.
In an action to foreclose a mortgage, the defendant Rochelle McCary appeals from ajudgment of foreclosure and sale of the Supreme Court, Suffolk County (Farneti, J.),entered December 5, 2012, which, upon an order of the same court dated February 14,2012, inter alia, granting the plaintiff's motion, among other things, for summaryjudgment on the complaint and denying her cross motion, inter alia, to dismiss thecomplaint insofar as asserted against her for lack of standing, and upon confirming areferee's report finding that the sum of $366,406.79 was due upon the mortgage, is infavor of the plaintiff and against her directing a foreclosure and sale of the subjectproperty.
Ordered that the judgment is affirmed, with costs.
"Where, as here, a plaintiff's standing to commence a foreclosure action is placed inissue by the defendant, it is incumbent upon the plaintiff to prove its standing to beentitled to relief" (Citimortgage,Inc. v Stosel, 89 AD3d 887, 888 [2011]; see Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011];U.S. Bank, N.A. vCollymore, 68 AD3d 752, 753 [2009]). A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that it is both the holder or assignee of thesubject mortgage and the holder or assignee of the underlying note at the time the actionis commenced (see HSBC BankUSA v Hernandez, 92 AD3d 843 [2012]; Bank of N.Y. v Silverberg, 86AD3d at 279; U.S. Bank, N.A. v Collymore, 68 AD3d at 753). The plaintiff maydemonstrate that it is the holder or assignee of the underlying note by showing "[e]ither awritten assignment of the underlying note or the physical delivery of the note" (U.S.Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95,108 [2011]).
Here, in support of that branch of its motion which was for summary judgment onthe complaint, the plaintiff established its prima facie entitlement to judgment as a matterof law by producing the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co.v Whalen, 107 AD3d 931, 932 [2013]; GRP Loan, LLC v Taylor, 95 AD3d 1172 [2012]). Theplaintiff also established that it had standing as the holder of the note and mortgage bysubmitting the written mortgage assignments and the affidavit of the plaintiff's president,which established that it had [*2]physical possession ofthe note prior to commencement of this action (see Deutsche Bank Natl. Trust Co. vWhalen, 107 AD3d at 932; Marcon Affiliates, Inc. v Ventra, 112 AD3d 1095 [2013];cf. Homecomings Fin.,LLC v Guldi, 108 AD3d 506 [2013]). In opposition, the defendant RochelleMcCary failed to raise a triable issue of fact. Accordingly, the Supreme Court properlygranted that branch of the plaintiff's motion which was for summary judgment on thecomplaint.
The parties' remaining contentions either are without merit or need not be addressedin light of our determination. Mastro, J.P., Rivera, Sgroi and Cohen, JJ., concur.