| Citibank, N.A. v Herman |
| 2015 NY Slip Op 00838 [125 AD3d 587] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Citibank, N.A., as Trustee for Certificateholders ofStructured Asset Mortgage Investments II Trust 2007-AR6, Pass-Through Certificates,Series 2007-AR6, Respondent, v Thomas Herman et al., Appellants, et al.,Defendants. |
Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, N.Y. (ChristopherA. Gorman of counsel), for appellants.
Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A.Cheverko of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Thomas Herman and BarbaraHerman appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Pastoressa, J.), dated April 23, 2013, as denied those branches of theirmotion which were for summary judgment dismissing the complaint insofar as assertedagainst them based upon lack of standing and for the cancellation of a certain notice ofpendency filed against the subject property.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the motion of the defendants Thomas Herman and BarbaraHerman which were for summary judgment dismissing the complaint insofar as assertedagainst them based upon lack of standing and for the cancellation of a certain notice ofpendency filed against the subject property are granted.
In a mortgage foreclosure action, a plaintiff has standing when it is both the holder orassignee of the subject mortgage and the holder or assignee of the underlying note at thetime the action is commenced (see Kondaur Capital Corp. v McCary, 115 AD3d 649, 650[2014]; HSBC Bank USA vHernandez, 92 AD3d 843 [2012]; Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]; Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 209 [2009]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]).The plaintiff may demonstrate that it is the holder or assignee of the underlying note byshowing either a written assignment of the underlying note or the physical delivery of thenote (see Kondaur Capital Corp. v McCary, 115 AD3d at 650; Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 108 [2011]; U.S. Bank, N.A. v Collymore, 68AD3d at 754). As a general matter, once a promissory note is tendered to and accepted byan assignee, the mortgage passes as an incident to the note (see Bank of N.Y. vSilverberg, 86 AD3d at 280). However, the transfer of the mortgage without the debtis a nullity, and no interest is acquired by it (see Bank of N.Y. Mellon v Gales, 116 AD3d 723, 724[2014]; Bank of N.Y. v Silverberg, 86 AD3d at 280), because a mortgage ismerely security for a debt or other obligation and cannot exist independently of the debtor obligation (see DeutscheBank Natl. Trust Co. v Spanos, 102 AD3d 909, 911 [2013]).
In support of that branch of their motion which was for summary judgmentdismissing the complaint insofar as asserted against them, the defendants ThomasHerman and Barbara Herman (hereinafter together the Hermans) demonstrated, primafacie, that the plaintiff did not have standing to be entitled to relief in this action. Theprima facie showing which a defendant must make on a motion for summary judgment isgoverned by the allegations made by the plaintiff in the pleadings (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Foster v Herbert Slepoy Corp.,76 AD3d 210, 214 [2010]). In this regard, the Hermans submitted, among otherthings, the complaint, which indicated that the plaintiff allegedly obtained its right toforeclose by way of an assignment of the mortgage and note from Mortgage ElectronicRegistration Systems, Inc. (hereinafter MERS), acting as nominee for the original lender.However, the Hermans established, prima facie, that MERS was never the holder of thenote and was without authority to assign the note to the plaintiff. In opposition, theplaintiff failed to raise a triable issue of fact. While the plaintiff submitted, among otherthings, a copy of the note in opposition to the Hermans' motion, the plaintiff failed toestablish delivery of the note to MERS prior to the execution of the assignment (cf. Midland Mtge. Co. vImtiaz, 110 AD3d 773, 776 [2013]). Moreover, the plaintiff failed to raise atriable issue fact as to whether it was the holder of the note at the time the action wascommenced (cf. US Bank N.A.v Faruque, 120 AD3d 575, 577 [2014]; Homecomings Fin., LLC v Guldi, 108 AD3d 506 [2013]).Therefore, the Supreme Court should have granted that branch of the Hermans' motionwhich was for summary judgment dismissing the complaint insofar as asserted againstthem based upon lack of standing.
Since the Hermans established their entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against them based upon lack of standing,the Supreme Court should have also granted that branch of their motion which was forthe cancellation of a certain notice of pendency filed against the subject property(see CPLR 6514 [a]; see also Freidus v Sardelli, 192 AD2d 578, 580[1993]). Leventhal, J.P., Hall, Austin and Sgroi, JJ., concur.