| Peak Fin. Partners, Inc. v Brook |
| 2014 NY Slip Op 04909 [119 AD3d 539] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| Peak Financial Partners, Inc.,Respondent, v Joseph Brook et al., Appellants, et al.,Defendant. |
Jon A. Lefkowitz, Brooklyn, N.Y., for appellants.
Peter T. Roach & Associates, P.C., Syosset, N.Y. (Michael C. Manniello ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Joseph Brook and Zahava Brookappeal from an order of the Supreme Court, Kings County (Baily-Schiffman, J.), enteredMay 14, 2013, which granted the plaintiff's motion for summary judgment on thecomplaint and denied their cross motion for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is affirmed, with costs.
" 'Where, as here, a plaintiff's standing to commence a foreclosure action isplaced in issue by the defendant[s], it is incumbent upon the plaintiff to prove itsstanding to be entitled to relief' " (Kondaur Capital Corp. v McCary, 115 AD3d 649, 649-650[2014], quoting Citimortgage,Inc. v Stosel, 89 AD3d 887, 888 [2011]). In a mortgage foreclosure action, aplaintiff has standing where it is the holder or assignee of both the subject mortgage andof the underlying note at the time the action is commenced (see HSBC Bank USA vHernandez, 92 AD3d 843 [2012]; Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]).Either a written assignment of the underlying note or the physical delivery of the noteprior to the commencement of the foreclosure action is sufficient to transfer theobligation (see HSBC Bank USA v Hernandez, 92 AD3d at 844).
Here, in support of its motion for summary judgment on the complaint, the plaintiffdemonstrated that it had standing by offering proof that the note and mortgage wereassigned to it prior to the commencement of this action. The plaintiff further establishedits prima facie entitlement to judgment as a matter of law by producing the mortgage, theunpaid note, and evidence of default (see Kondaur Capital Corp. v McCary, 115AD3d at 650). In opposition, the defendants Joseph Brook and Zahava Brook(hereinafter together the appellants) failed to raise a triable issue of fact (see Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]).
The appellants failed to establish that this action is barred by Business CorporationLaw § 1312, as they failed to overcome the presumption that the plaintiffdoes business in California, its state of incorporation, and not in New York (seeBusiness Corporation Law § 1312 [a]; Household Bank [SB], N.A. v Mitchell, 12 AD3d 568[2004]).
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary[*2]judgment on the complaint, and properly denied theappellants' cross motion for summary judgment dismissing the complaint insofar asasserted against them. Chambers, J.P., Austin, Hinds-Radix and Duffy, JJ., concur.