| PNC Bank, N.A. v Klein |
| 2015 NY Slip Op 01624 [125 AD3d 953] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| PNC Bank, National Association,Respondent, v Aaron Klein, Appellant, et al.,Defendants. |
Menashe & Associates, LLP, Montebello, N.Y. (Chezki Menashe of counsel),for appellant.
McCabe, Weisenberg & Conway, P.C., New Rochelle, N.Y. (Matthew Russellof counsel), for respondent.
In an action to foreclose a mortgage, the defendant Aaron Klein appeals, as limitedby his brief, from so much of an order of the Supreme Court, Rockland County (Kelly,J.), dated October 8, 2013, as, upon, in effect, reargument, adhered to its originaldetermination in an order of the same court dated September 4, 2013, inter alia, grantingthe plaintiff's motion for summary judgment.
Ordered that the order dated October 8, 2013, is affirmed insofar as appealed from,with costs.
The defendant Aaron Klein executed a note and mortgage to secure a loan of$195,000 from the original lender, National City Mortgage Co., doing business asCommonwealth United Mortgage Company. The plaintiff, PNC Bank, NationalAssociation (hereinafter PNC), successor by merger to National City Bank, successor bymerger to National City Mortgage Co., doing business as Commonwealth UnitedMortgage Company, commenced this action to foreclose the mortgage after Kleinallegedly defaulted in repayment. In his pro se answer, Klein asserted, as a defense, thatPNC lacked standing. PNC moved for summary judgment and for the appointment of areferee to hear and compute the amount allegedly due to it. In an order dated September4, 2013, the Supreme Court granted PNC's motion, but the order was silent as to whetherthe court had considered any opposition papers in determining PNC's motion. Kleinmoved, in effect, for leave to reargue and thereupon to vacate the order dated September4, 2013, contending that he had timely filed papers in opposition to PNC's motion butthat, due to an anomaly with respect to the time stamp affixed by the clerk of the court tothose papers, the court had apparently not considered those papers in determining themotion. In support of his motion, Klein submitted a copy of the subject oppositionpapers. The Supreme Court, in effect, granted leave to reargue and determined toconsider all evidence, submissions, and issues de novo, regardless of whether Klein'spapers in opposition to PNC's motion had been timely submitted. Upon de novo review,the court adhered to its original determination granting PNC's motion for summaryjudgment, upon concluding that PNC demonstrated that it was the holder of the mortgageand note at the time the action was commenced, thereby rejecting Klein's defense of lackof standing.
Generally, a plaintiff in a mortgage foreclosure action is entitled to summary [*2]judgment if it establishes the existence of a mortgage, anunpaid note, and the defendant's default, and the defendant fails to raise a triable issue offact in opposition (seeSwedbank, AB, N.Y. Branch v Hale Ave. Borrower, LLC, 89 AD3d 922, 923[2011]; Deutsche Bank Natl.Trust Co. v Posner, 89 AD3d 674, 674-675 [2011]). However, where, as here,standing has been made an issue, a plaintiff must also provide prima facie proof that ithad standing to sue as of the time it commenced the action (see Wells Fargo Bank, N.A. vWine, 90 AD3d 1216, 1217 [2011]; Citimortgage, Inc. v Stosel, 89 AD3d 887, 888[2011]).
Here, PNC's submissions, which were in admissible form, established that, through aseries of corporate mergers, the original mortgage and note devolved from National Cityto it and, accordingly, it made a prima facie showing that it had standing (seeBanking Law § 602; Federal Natl. Mtge. Assn. v Youkelsone, 303AD2d 546, 547 [2003]). In opposition, Klein failed to raise a triable issue of fact.Contrary to Klein's contention, the merger of the various banking entities obviated theneed for any assignments of the mortgage and note, as PNC and its predecessors havecontinuously possessed the mortgage and note. Also contrary to Klein's contention, thebanking mergers need not be proven solely by public documentation.
Klein's remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Dickerson, Cohen and Barros, JJ.,concur.