| CitiMortgage, Inc. v Chow Ming Tung |
| 2015 NY Slip Op 02087 [126 AD3d 841] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| CitiMortgage, Inc., Appellant, v Chow MingTung, Also Known as Chow Tung, Respondent, et al.,Defendants. |
Stiene & Associates P.C., Huntington, N.Y. (Charles W. Marino of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Velasquez, J.), dated August 20, 2013, which, in effect,denied its unopposed motion for summary judgment on the complaint insofar as assertedagainst the defendant Chow Ming Tung, also known as Chow Tung, dismissing theaffirmative defenses set forth in the answer of that defendant, for an order of reference,for leave to amend the caption to replace the defendants "John Doe and Jane Doe #1through #7" with the defendant Jimming Cao, and for leave to enter a default judgmentagainst the remaining defendants, and, sua sponte, directed the dismissal of thecomplaint.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed the dismissal of the complaint is deemed an application forleave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion for summary judgment on the complaint insofar as asserted againstthe defendant Chow Ming Tung, also known as Chow Tung, dismissing the affirmativedefenses set forth in the answer of that defendant, for an order of reference, for leave toenter a default judgment against the remaining defendants, and for leave to amend thecaption is granted.
The Supreme Court erred in, in effect, denying the plaintiff's unopposed motion forsummary judgment on the complaint insofar as asserted against the defendant ChowMing Tung, also known as Chow Tung, dismissing the affirmative defenses set forth inTung's answer, for an order of reference, for leave to enter a default judgment against theremaining defendants, and for leave to amend the caption and, sua sponte, directing thedismissal of the complaint for lack of standing.
" '[I]n an action to foreclose a mortgage, a plaintiff establishes its case as amatter of law through the production of the mortgage, the unpaid note, and evidence ofdefault' " (Baron Assoc.,LLC v Garcia Group Enters., Inc., 96 AD3d 793, 793 [2012], quoting Argent Mtge. Co., LLC v [*2]Mentesana, 79 AD3d 1079 [2010]). Where, ashere, the plaintiff's standing to commence the action is placed in issue by a defendant, theplaintiff must ultimately establish its standing to be entitled to relief (see Bank of N.Y. Mellon vGales, 116 AD3d 723 [2014]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009]).In an action to foreclose a mortgage, the plaintiff has standing where, at the time theaction is commenced, it is the holder or assignee of both the subject mortgage and theunderlying note (see Bank of N.Y. Mellon v Gales, 116 AD3d at 724; Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d 680, 682 [2012]; Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]).Written assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient to transfer the obligation (seeBank of N.Y. Mellon v Gales, 116 AD3d at 724; Deutsche Bank Natl. Trust Co.v Haller, 100 AD3d at 682; U.S. Bank, N.A. v Collymore, 68 AD3d at754).
The plaintiff demonstrated its prima facie entitlement to judgment as a matter of lawon the complaint insofar as asserted against Tung by submitting, among other things, awritten assignment from the original lender, the note, and an affidavit attesting to Tung'sfailure to make payments due under the mortgage. The plaintiff also demonstrated itsprima facie entitlement to judgment as a matter of law dismissing Tung's affirmativedefenses (see US Bank N.A. vWeinman, 123 AD3d 1108 [2014]; JP Morgan Chase Bank v Munoz, 85 AD3d 1124, 1126[2011]). Since no opposition was filed, Tung failed to raise a triable issue of fact inopposition (see Flagstar Bank vBellafiore, 94 AD3d 1044, 1045 [2012]).
The Supreme Court also erred in, sua sponte, directing dismissal of the complaint. "Acourt's power to dismiss a complaint, sua sponte, is to be used sparingly and only whenextraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel,83 AD3d 1047, 1048 [2011]; see Bank of N.Y. v Castillo, 120 AD3d 598 [2014]; HSBC Bank USA, N.A. vTaher, 104 AD3d 815, 817 [2013]). Here, the Supreme Court was not presentedwith extraordinary circumstances warranting sua sponte dismissal of the complaint. Evenif the plaintiff had lacked standing it would not have constituted a jurisdictional defectand would not warrant a sua sponte dismissal of the complaint (see Bank of N.Y. v Cepeda,120 AD3d 451, 453 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 817[2013]; see also Deutsche BankNatl. Trust Co. v Hunter, 100 AD3d 810, 811 [2012]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 244 [2007]).
The plaintiff demonstrated that the caption should be amended to replace thedefendants "John Doe and Jane Doe #1 through #7" with the defendant Jimming Cao(see CPLR 1024; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 568[2014]; Flagstar Bank v Bellafiore, 94 AD3d at 1045).
Finally, the Supreme Court erred in denying that branch of the plaintiff's unopposedmotion which was for leave to enter a default judgment against the remaining defendants.By submitting proof of service of the summons and complaint, proof of the factsconstituting the claim, and proof of those defendants' failure to answer or appear, theplaintiff demonstrated its prima facie entitlement to a default judgment against thosedefendants (see CPLR 3215 [f]; U.S. Bank, N.A. v Razon, 115 AD3d 739, 740 [2014]; Mortgage Elec. Registration Sys.,Inc. v Smith, 111 AD3d 804, 806 [2013]; Loaiza v Guzman, 111 AD3d 608, 609 [2013]). Inaddition, the court should have granted that branch of the plaintiff's motion which wasfor an order of reference (see RPAPL 1321; Deutsche Bank Natl. Trust Co. vIslar, 122 AD3d at 568; Flagstar Bank v Bellafiore, 94 AD3d at 1145).Skelos, J.P., Leventhal, Hinds-Radix and Maltese, JJ., concur.