| PHH Mtge. Corp. v Israel |
| 2014 NY Slip Op 06192 [120 AD3d 1329] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| PHH Mortgage Corporation,Appellant, v Andrew S. Israel, Also Known as Andrew Israel, et al., Defendants,and Alisa B. Israel, Also Known as Alisa Israel, Respondent. |
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel),for appellant.
Glenn J. Wurzel, Hempstead, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an amended judgmentof the Supreme Court, Suffolk County (Rebolini, J.), dated January 22, 2013, which,upon an order of the same court dated February 6, 2012, granting that branch of themotion of the defendant Alisa B. Israel, also known as Alisa Israel, which was pursuantto CPLR 3211 (a) (3) to dismiss the complaint for lack of standing, dismissed thecomplaint.
Ordered that the amended judgment is reversed, on the law, with costs, that branch ofthe motion of the defendant Alisa B. Israel, also known as Alisa Israel, which waspursuant to CPLR 3211 (a) (3) to dismiss the complaint for lack of standing is denied,the order is modified accordingly, and the complaint is reinstated.
PHH Mortgage Corporation established that it was the holder of the subjectmortgage note when it commenced this action, and thus, made a showing sufficient towarrant denial of that branch of the motion of the defendant Alisa B. Israel, also knownas Alisa Israel (hereinafter the respondent) which was pursuant to CPLR 3211 (a) (3) todismiss the complaint based on the plaintiff's alleged lack of standing (see CPLR3211 [a] [3]). " '[T]he physical delivery of the note prior to the commencementof the foreclosure action is sufficient to transfer the obligation, and the mortgage passeswith the debt as an inseparable incident' " (Bank of N.Y. v Silverberg, 86 AD3d 274, 281 [2011][internal quotation marks omitted], quoting US Bank N.A. v Madero, 80 AD3d 751, 753 [2011]; see U.S. Bank, N.A. vCollymore, 68 AD3d 752, 754 [2009]; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912[2009]; see also Deutsche BankTrust Co. Ams. v Codio, 94 AD3d 1040 [2012]).
The respondent's contention that the plaintiff failed to comply with the noticeprovisions of RPAPL 1303 and 1304 is without merit. The plaintiff provided proof that ithad complied with the requirements of those provisions, and the respondent did notrefute that proof (see U.S. BankN.A. v Tate, 102 AD3d 859 [2013]; see also Aurora Loan Servs., LLC v Weisblum, 85 AD3d95, 106 [2011]).
Accordingly, the Supreme Court should have denied that branch of the respondent's[*2]motion which was pursuant to CPLR 3211 (a) (3) todismiss the complaint.
In light of our determination, we need not address the parties' remaining contentions.Skelos, J.P., Dickerson, Austin and Duffy, JJ., concur.