| Deutsche Bank Natl. Trust Co. v Islar |
| 2014 NY Slip Op 07468 [122 AD3d 566] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, on Behalf ofthe Certificateholders Morgan Stanley ABS Capital 1 Inc. Trust 2005-HE3 MortgagePass-Through Certificates Series 2005-HE3, Appellant, v Norris Islar,Respondent, et al., Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F.Battista of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Schack, J.), dated April 8,2013, as denied those branches of its motion which were for summary judgment on thecomplaint, to strike the answer of the defendant Norris Islar, for an order of reference,and to amend the caption to substitute Lisa Mathis and Mrs. Johnson as party defendantsinstead of the defendants sued as "John Doe #1" and "John Doe #2" and delete thedefendants sued as "John Doe #3" through "John Doe #10."
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and those branches of the plaintiff's motion which were for summaryjudgment on the complaint, to strike the answer of the defendant Norris Islar, for anorder of reference, and to amend the caption to substitute Lisa Mathis and Mrs. Johnsonas party defendants instead of the defendants sued as "John Doe #1" and "John Doe #2"and delete the defendants sued as "John Doe #3" through "John Doe #10" are granted;and it is further,
Ordered that the matter is remitted to the Supreme Court, Kings County, for furtherproceedings before a different Justice.
The Supreme Court denied that branch of the plaintiff's motion which was forsummary judgment on the complaint on the ground that the plaintiff had failed toestablish its standing to foreclose the subject mortgage. Where, as here, the defendants ina mortgage foreclosure action waive the issue of standing by failing to assert the defensein an answer or pre-answer motion to dismiss the complaint (see CPLR 3211 [e]),the plaintiff need not establish its standing in order to demonstrate its prima facieentitlement to judgment as a matter of law (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, 244-245 [2007]).
Furthermore, the plaintiff made a prima facie showing of entitlement to judgment asa matter of law by submitting, inter alia, the mortgage, the note, and the affidavit of itsvice president attesting to the default (see Katz v Miller, 120 AD3d 768 [2014]; KeyBank N.A. v Chapman SteamerCollective, LLC, 117 AD3d 991, 992 [2014]; Emigrant Mtge. Co., Inc. vBeckerman, 105 AD3d 895 [2013]). "Since no opposition was filed, no triableissue of fact was raised in response to the plaintiff's prima facie showing" (Flagstar Bank v Bellafiore, 94AD3d 1044, 1045 [2012]; see KeyBank N.A. v Chapman Steamer Collective,LLC, 117 AD3d at 992). Accordingly, those branches of the plaintiff's motion [*2]which were for summary judgment on the complaint, tostrike the answer of the defendant Norris Islar, and for an order of reference should havebeen granted (see Flagstar Bank v Bellafiore, 94 AD3d at 1045).
Additionally, as the plaintiff demonstrated that it had served Lisa Mathis and Mrs.Johnson as "John Doe #1" and "John Doe #2," respectively, and that there were no other"John Does" occupying the mortgaged premises, that branch of its motion which was toamend the caption to substitute Lisa Mathis and Mrs. Johnson as party defendants insteadof the defendants sued as "John Doe #1" and "John Doe #2" and delete the defendantssued as "John Doe #3" through "John Doe #10" should have been granted (seeCPLR 1024; Flagstar Bank v Bellafiore, 94 AD3d at 1046; Neighborhood Hous. Servs. ofN.Y. City, Inc. v Meltzer, 67 AD3d 872, 873-874 [2009]).
Since Justice Arthur Schack continues to flagrantly ignore this Court's precedent, asarticulated in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d at 239),holding that the defense of lack of standing is waived if not raised by the defendant in ananswer or pre-answer motion to dismiss (see HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817[2013]; U.S. Bank, N.A. vEmmanuel, 83 AD3d 1047, 1048-1049 [2011]; cf. Bank of N.Y. v Cepeda,120 AD3d 451, 452 [2014]; Bank of N.Y. v Mulligan, 119 AD3d 716, 716 [2014]; Wells Fargo Bank, N.A. vGioia, 114 AD3d 766, 767 [2014]), we deem it appropriate to remit the matter tothe Supreme Court, Kings County, for further proceedings before a different Justice.Mastro, J.P., Skelos, Roman and Maltese, JJ., concur.