| Emigrant Bank v Larizza |
| 2015 NY Slip Op 05151 [129 AD3d 904] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Emigrant Bank, Respondent, v CarmelaLarizza, Also Known as Carmela Oliveri, Appellant, et al.,Defendant. |
Clair & Gjertsen, Scarsdale, N.Y. (Nicole M. Black of counsel), forappellant.
Knuckles, Komosinski & Elliot, LLP, Elmsford, N.Y. (Jordan J. Manfro ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Carmela Larizza, also known asCarmela Oliveri, appeals, as limited by her brief, from so much of an order of theSupreme Court, Westchester County (Adler, J.), dated July 31, 2014, as granted thosebranches of the plaintiff's motion which were for summary judgment on the complaintand for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 25, 2008, the defendant Carmela Larizza, also known as CarmelaOliveri (hereinafter Larizza), signed a mortgage note promising to repay the sum of$780,000 to Emigrant Mortgage Company, Inc. (hereinafter EMC), in accordance withthe terms set forth in the note. The mortgage note is supplemented by an undated"allonge," according to which an officer of EMC endorsed the note, "without recourse,"to Emigrant Savings Bank-Bronx/Westchester (hereinafter ESB). On September 25,2008, Larizza also signed a mortgage instrument, pursuant to which a mortgage lien oncertain property owned by her would serve as security for repayment of the $780,000loan.
On October 30, 2009, an officer of EMC signed a document according to which the$780,000 mortgage was assigned to ESB, "together with the note(s) and obligationstherein described." In January 2013, ESB was merged into the plaintiff Emigrant Bank(hereinafter Emigrant).
By February 2010, Larizza was in default on the mortgage loan. In March 2013,Emigrant commenced the present foreclosure action against Larizza, among otherdefendants, by filing the summons and complaint. The $780,000 note, including theallonge, was among the various exhibits annexed to the complaint. Also appended to thecomplaint was a "verification," in the form of an affidavit, signed by an assistanttreasurer of Emigrant. Larizza served an answer and asserted various affirmativedefenses, including that Emigrant lacked standing. Thereafter, Emigrant moved, interalia, for summary judgment on the complaint and an order of reference. In the orderappealed from, the Supreme Court, inter alia, granted those branches of Emigrant'smotion. The defendant appeals, and we affirm insofar as appealed from.
In a foreclosure action, a plaintiff has standing if it is either the holder of, or the[*2]assignee of, the underlying note at the time that theaction is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]; see generally Emigrant Sav. Bank-Brooklyn/Queens v Doliscar,124 AD3d 831 [2015]; HSBC Bank USA v Hernandez, 92 AD3d 843 [2012]).Either a written assignment of the underlying note or the physical delivery of the note tothe plaintiff, prior to the commencement of the action, is sufficient to transfer theobligation (see e.g. Wells FargoBank, N.A. v Parker, 125 AD3d 848 [2015]; U.S. Bank N.A. v Guy, 125 AD3d 845 [2015]; Emigrant Sav.Bank-Brooklyn/Queens v Doliscar, 124 AD3d 831 [2015]; U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]).
Emigrant established its prima facie entitlement to judgment as a matter of law by theproduction of copies of the mortgage, the unpaid note, and evidence of default (see e.g. Aurora Loan Servs., LLC vEnaw, 126 AD3d 830 [2015]; US Bank N.A. v Weinman, 123 AD3d 1108 [2014]; Plaza Equities, LLC vLamberti, 118 AD3d 688, 689 [2014]; Solomon v Burden, 104 AD3d 839 [2013]), anddemonstrated its standing based both on its physical possession of the note, and on itsstatus as an assignee of the note, as of the date that the action was commenced (see Wells Fargo Bank, N.A. vParker, 125 AD3d 848 [2015]; Wells Fargo Bank, N.A. v Ali, 122 AD3d 726 [2014]).
In opposition to that prima facie showing, Larizza failed to raise a triable issue offact as to Emigrant's standing or her default.
Larizza's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted those branches of the plaintiff'smotion which were for summary judgment on the complaint and an order of reference.Mastro, J.P., Chambers, Maltese and Duffy, JJ., concur.