| HSBC Bank USA, N.A. v Spitzer |
| 2015 NY Slip Op 07008 [131 AD3d 1206] |
| September 30, 2015 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association, as Trustee forNomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series2006-AR2, Respondent, v Sharona Spitzer et al., Appellants, et al.,Defendants. |
Jeremy Rosenberg, New York, N.Y., for appellants.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, and SeanM. Marotta of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Sharona Spitzer and EliyahuSpitzer, also known as Eliot Spitzer, appeal from (1) an order of the Supreme Court,Rockland County (Loehr, J.), entered January 31, 2013, which granted the plaintiff'smotion, inter alia, for summary judgment on the complaint and dismissing theiraffirmative defenses, and for an order of reference, and (2) an order of the same court,also entered January 31, 2013, which, among other things, directed the dismissal of theiraffirmative defenses and appointed a referee to determine the amount due to theplaintiff.
Ordered that the orders are affirmed, with one bill of costs.
To establish a prima facie case in an action to foreclose a mortgage, a plaintiff mustproduce "the mortgage, the unpaid note, and evidence of default" (Emigrant Mtge. Co., Inc. vBeckerman, 105 AD3d 895, 895 [2013]). "Where, as here, standing is put intoissue by a defendant, 'the plaintiff must prove its standing in order to be entitled torelief' " (Aurora LoanServs., LLC v Taylor, 114 AD3d 627, 628 [2014], affd 25 NY3d 355[2015], quoting U.S. Bank,N.A. v Collymore, 68 AD3d 752, 753 [2009]). A plaintiff has standing in amortgage foreclosure action where it is the holder or assignee of the underlying note atthe time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25NY3d at 361; Deutsche BankNatl. Trust Co. v Whalen, 107 AD3d 931, 932 [2013], quoting Bank of N.Y. v Silverberg, 86AD3d 274, 279 [2011]).
Contrary to the defendants' contention, the Supreme Court did not err in concludingthat the plaintiff established standing to commence this foreclosure action, as theaffidavit of Leon Mirasol, a vice president of loan documentation for the plaintiff's loanservicer, established that the plaintiff had physical possession of the note at the time theaction was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 979[2015]; Wells Fargo Bank, N.A.v Arias, 121 AD3d 973 [2014]; Kondaur Capital Corp. v McCary, 115 AD3d 649[2014]).
The plaintiff further sustained its burden of demonstrating its prima facie entitlementto judgment as a matter of law by submitting the mortgage, the note, and the affidavit ofMirasol, [*2]attesting to the default of the defendantsSharona Spitzer and Eliyahu Spitzer, also known as Eliot Spitzer, in the repayment oftheir mortgage loan obligation (see Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895[2013]). In opposition, the Spitzers failed to raise a triable issue of fact. Although thedefendant AJ Mendel Group, Inc., appeared in the action, it did not oppose the motion.The remaining defendants failed to appear in the action.
Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, forsummary judgment on the complaint and dismissing the appellants' affirmative defenses,and for an order of reference. Dillon, J.P., Balkin, Miller and Maltese, JJ., concur.