| HSBC Bank USA, N.A. v Calderon |
| 2014 NY Slip Op 01582 [115 AD3d 708] |
| March 12, 2014 |
| Appellate Division, Second Department |
| HSBC Bank USA, National Association,Respondent, v Oscar Calderon, Appellant, et al.,Defendants. |
—[*1] Hogan Lovells US LLP, New York, N.Y. (David Dunn, Allison J. Schoenthal, andChava Brandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Oscar Calderon appeals from anorder of the Supreme Court, Suffolk County (Molia, J.), dated June 16, 2011, whichdenied his motion for summary judgment dismissing the complaint insofar as assertedagainst him and to vacate an assignment of mortgage.
Ordered that the order is affirmed, with costs.
A plaintiff has standing to commence a mortgage foreclosure action when, at thetime of commencement of the action, it is the holder or assignee of the mortgage andthe holder or assignee of the underlying note (see Bank of N.Y. v Silverberg, 86 AD3d 274, 280 [2011]).Here, the defendant Oscar Calderon moved for summary judgment dismissing thecomplaint insofar as asserted against him on the ground that the plaintiff lacked standingbecause the assignment of the mortgage to the plaintiff was invalid. The evidence in therecord, however, established that the assignment, which took place before the action wascommenced, was valid. Therefore, the Supreme Court properly rejected Calderon'scontention in denying his motion.
Calderon now also contends that the plaintiff lacked standing because it was not theholder of the note at the time it commenced this action. However, this contention, whichwas raised for the first time on appeal, is not properly before us (see Mortgage Elec. RegistrationSys., Inc. v Korolizky, 100 AD3d 605, 606 [2012]).
Calderon's remaining contention is without merit.
Accordingly, the Supreme Court properly denied Calderon's motion for summaryjudgment dismissing the complaint insofar as asserted against him and to vacate theassigment of the mortgage. Dillon, J.P., Balkin, Chambers and Cohen, JJ., concur.