| Nationstar Mtge., LLC v Catizone |
| 2015 NY Slip Op 03510 [127 AD3d 1151] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC,Respondent, v Bryan D. Catizone, Also Known as Bryan Catizone, Individuallyand as Administrator of the Estate of Gloria Catizone, Deceased, Appellant, et al.,Defendants. |
Bloom & Bloom, P.C., New Windsor, N.Y. (Kevin D. Bloom of counsel), forappellant.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Robert S. Markel and RichardP. Haber of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Bryan D. Catizone appeals, aslimited by his brief, from (1) so much of an order of the Supreme Court, Orange County(Bartlett, J.), dated March 18, 2014, as granted the plaintiff's motion for summaryjudgment on the complaint insofar as asserted against him and denied his cross motionfor summary judgment dismissing the complaint insofar as asserted against him, and (2)stated portions of an order of the same court, also dated March 18, 2014, which, interalia, granted the plaintiff's motion to dismiss his answer and appointed a referee toascertain and compute the amount due under the note and mortgage.
Ordered that the orders are affirmed insofar as appealed from, with one bill ofcosts.
Where, as in this case, a plaintiff's standing to maintain an action to foreclose amortgage is put into issue by a defendant, it is incumbent upon the plaintiff to prove itsstanding in order to establish its entitlement to relief (see Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d680, 682 [2012]; Citimortgage, Inc. v Stosel, 89 AD3d 887, 888 [2011]; US Bank N.A. v Madero, 80AD3d 751, 752 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009])."A plaintiff establishes its standing in a mortgage foreclosure action by demonstratingthat it is both the holder or assignee of the subject mortgage and the holder or assignee ofthe underlying note at the time the action is commenced" (Bank of Am., N.A. v Paulsen,125 AD3d 909, 910 [2015]; see US Bank N.A. v Faruque, 120 AD3d 575, 577 [2014];Homecomings Fin., LLC vGuldi, 108 AD3d 506, 507 [2013]).
Contrary to the appellant's contention, the plaintiff established its standing as theholder of the note and mortgage by demonstrating that the note was in its possession andthe mortgage had been assigned to it prior to the commencement of the action, asevidenced by its attachment of the indorsed note, the mortgage, and the mortgageassignment to the summons and complaint at the time the action was commenced (seegenerally Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546 [2003]; FirstTrust Natl. Assn. v Meisels, 234 AD2d 414 [1996]). Moreover, the [*2]plaintiff made a prima facie showing of entitlement tojudgment as a matter of law by producing the mortgage, the unpaid note, and evidence ofdefault (see U.S. Bank N.A. vDenaro, 98 AD3d 964 [2012]; Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832[2009]). Since the appellant failed to raise a triable issue of fact in opposition to theseshowings, the Supreme Court properly granted the plaintiff's motion for summaryjudgment and denied the appellant's cross motion for summary judgment.
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Mastro, J.P., Leventhal, Cohen and Maltese, JJ., concur.