| Brighton BK, LLC v Kurbatsky |
| 2015 NY Slip Op 06774 [131 AD3d 1000] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Brighton BK, LLC, Respondent, v ValentinaKurbatsky, as Trustee of the 3072 Brighton First Street Residence Trust, Appellant, etal., Defendants. |
Victor A. Worms, New York, N.Y., for appellant.
Adam E. Mikolay, P.C., East Meadow, N.Y., for respondent.
In an action to foreclose a mortgage, the defendant Valentina Kurbatsky, as trustee ofthe 3072 Brighton First Street Residence Trust, appeals, as limited by her brief, from somuch of an order of the Supreme Court, Kings County (Pfau, J.), dated September 4,2013, as granted the motion of Brighton BK, LLC, to amend the caption, inter alia, tosubstitute itself as the plaintiff, for summary judgment on the complaint, and for an orderof reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
In March 2007, the defendant Valentina Kurbatsky, as trustee of the 3072 BrightonFirst Street Residence Trust (hereinfter the defendant), executed a note in the amount of$300,000 in favor of Dime Savings Bank of Williamsburgh (hereinafter Dime), anddelivered to Dime a mortgage on certain real property in Brooklyn to secure repaymentof the note. The defendant allegedly defaulted on September 1, 2011, by failing to paythe sum of $5,509, and no payments were made thereafter. Dime commenced this actionto foreclose the mortgage on March 7, 2012, by filing a summons and complaint verifiedby a first vice president of Dime, based upon his personal knowledge and books andrecords maintained by Dime. The verified complaint stated that the default occurred onSeptember 1, 2011.
On April 30, 2012, Dime assigned its interest in the mortgage and note to BrightonBK, LLC (hereinafter Brighton). By notice of motion dated January 31, 2013, Brightonmoved to amend the caption, inter alia, to substitute itself as the plaintiff, for summaryjudgment on the complaint, and for an order of reference.
In a mortgage foreclosure action, a plaintiff has standing where it is the holder orassignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]; US Bank N.A. v Cange, 96 AD3d 825, 826 [2012]; Bank of N.Y. v Silverberg, 86AD3d 274, 279 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754[2009]). In the event that a note and mortgage are validly assigned to a third partysubsequent to the commencement of a foreclosure action, as was the case here, theassignee can continue an action in the name of the original mortgagee, even in theabsence of a formal substitution (see CPLR 1018; Lincoln Sav. Bank, FSB vWynn, 7 AD3d 760 [2004]; Central Fed. Sav. v 405 W. 45th St., 242AD2d 512 [1997]). Nonetheless, an assignee may, if it chooses, take the steps necessaryto effect a formal substitution.
[*2] Upon proofthat the mortgage and the underlying debt was assigned by Dime to Brighton, theSupreme Court providently exercised its discretion in granting that branch of Brighton'smotion which was to amend the caption to substitute it for Dime (see CPLR1018; Deutsche Bank Trust Co.,Ams. v Stathakis, 90 AD3d 983, 983 [2011]; Maspeth Fed. Sav. & LoanAssn. v Simon-Erdan, 67 AD3d 750, 751 [2009]).
A plaintiff seeking summary judgment in a mortgage foreclosure action establishesits prima facie entitlement to judgment as a matter of law by producing the mortgage andthe unpaid note, and evidence of the default, by proof in admissible form (seeCPLR 3212 [b]; US BankN.A. v Madero, 125 AD3d 757, 758 [2015]; W & H Equities LLC v Odums, 113 AD3d 840, 841[2014]; Washington Mut. Bankv Schenk, 112 AD3d 615, 616 [2013]; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856, 856[2009]). Here, Brighton met that burden by producing the relevant documents, anaffidavit from a member of Brighton which attested to the defendant's default, which"continues to the date hereof," based upon his personal knowledge and upon a review ofthe books and records of Brighton maintained in the regular course of business, and thecomplaint verified by an officer of Dime, the original plaintiff, based upon personalknowledge and the books and records of Dime (see Kempf v Magida, 37 AD3d 763 [2007]; LebarConstr. Corp. v HRH Constr. Corp., 292 AD2d 506, 507 [2002]; CPLR 105 [u]). Inopposition, the defendant failed to raise a triable issue of fact.
Accordingly, the motion to amend the caption, inter alia, to substitute Brighton as theplaintiff, for summary judgment on the complaint, and for an order of reference, wasproperly granted. Leventhal, J.P., Miller, Hinds-Radix and Maltese, JJ., concur.