| Bank of N.Y. Mellon v Aquino |
| 2015 NY Slip Op 06997 [131 AD3d 1186] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon,Respondent, v Alberto Aquino et al., Appellants. |
Salfarlie, Salfarlie & Associates, P.C., Jamaica, N.Y. (Donald A. Salfarlie andSteven Alexander Biolsi of counsel), for appellants.
Sheldon May & Associates, P.C. (Stim & Warmuth, Farmingville, N.Y.[Glenn P. Warmuth], of counsel), for respondent.
In an action to foreclose a mortgage, the defendants appeal, as limited by their brief,from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), enteredMay 21, 2013, as, upon a decision of the same court dated December 11, 2012, grantedthe plaintiff's motion for summary judgment on the complaint and denied their crossmotion, inter alia, for leave to amend their answer to add an affirmative defense of lackof standing and to dismiss the complaint on that ground. The notice of appeal from thedecision dated December 11, 2012, is deemed to be a notice of appeal from the orderentered May 21, 2013 (see CPLR 5512 [a]).
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the plaintiff's motion for summary judgment on the complaint, and substitutingtherefor a provision denying the plaintiff's motion; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
In order to establish prima facie entitlement to judgment as a matter of law in aforeclosure action, a plaintiff must submit the mortgage and unpaid note, along withevidence of the default (seeWashington Mut. Bank v Schenk, 112 AD3d 615 [2013]; Wells Fargo Bank, N.A. vWebster, 61 AD3d 856, 856 [2009]; Aurora Loan Servs., LLC v Thomas, 53 AD3d 561[2008]). Furthermore, where, as here, the plaintiff in a residential foreclosure actionalleges in its complaint that it has served an RPAPL 1304 notice on the borrowers, insupport of a motion for summary judgment the plaintiff must "prove its allegation bytendering sufficient evidence demonstrating the absence of material issues as to its strictcompliance with RPAPL 1304" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106[2011]).
As the defendants correctly contend, the plaintiff failed to submit an affidavit ofservice evincing that it properly served them pursuant to RPAPL 1304 (see Deutsche Bank Natl. Trust Co.v Spanos, 102 AD3d 909, 911 [2013]; Aurora Loan Servs., LLC vWeisblum, 85 AD3d at 106). Consequently, the plaintiff did not establish its primafacie entitlement to judgment as a matter of law since it failed to demonstrate strictcompliance with RPAPL 1304 (see Aurora Loan Servs., LLC [*2]v Weisblum, 85 AD3d at 106). Thus, the plaintiff'smotion for summary judgment on the complaint should have been denied (see Wells Fargo Bank, NA vBurke, 125 AD3d 765, 767 [2015]).
Contrary to the defendants' further contention, the Supreme Court properly deniedthose branches of their cross motion which were for leave to amend their answer to addthe defense of lack of standing and to dismiss the complaint on that ground. Thedefendants initially did not raise in their answer a defense based upon lack of standing.Although, generally, this defense is waived under CPLR 3211 (e) where not raised in ananswer or made the subject of a motion to dismiss, it can nevertheless be interposed in ananswer amended by leave of court pursuant to CPLR 3025 (b), as long as the amendmentdoes not cause the other party prejudice or surprise resulting directly from the delay, andis not palpably insufficient or patently devoid of merit (see CPLR 3025 [b]; Aurora Loan Servs., LLC vDimura, 104 AD3d 796, 797 [2013]; U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724 [2011]; Complete Mgt., Inc. vRubenstein, 74 AD3d 722, 723 [2010]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]). Here, theSupreme Court did not improvidently exercise its discretion in denying that branch of thedefendants' cross motion which was for leave to amend their answer to include thedefense of lack of standing and to dismiss that complaint on that ground. As the SupremeCourt properly determined, such a defense was patently devoid of merit (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355 [2015]).
The defendants' remaining contentions either are without merit or need not bereached in light of our determination. Balkin, J.P., Austin, Sgroi and LaSalle, JJ.,concur.