| First Franklin Fin. Corp. v Norton |
| 2015 NY Slip Op 07419 [132 AD3d 1423] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| First Franklin Financial Corporation, Appellant, vWilliam Norton, Also Known as William A. Norton, Respondent, et al.,Defendants. |
Fein, Such & Crane, LLP, Rochester, D.J. & J.A. Cirando, Esqs., Syracuse(John A. Cirando of counsel), for plaintiff-appellant.
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Marco Cercone of counsel) andArthur N. Bailey & Associates, Jamestown, for defendant-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon,J.), entered June 6, 2012. The order, inter alia, granted the motion of defendant WilliamNorton, also known as William A. Norton, to dismiss the complaint against him for lackof standing and directed the Chautauqua County Clerk to mark as cancelled a certainmortgage-like instrument.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by vacating the second ordering paragraph, and as modified the order is affirmedwithout costs.
Memorandum: In this mortgage foreclosure action, plaintiff appeals from an orderthat, inter alia, granted the motion of William Norton, also known as William A. Norton(defendant) to dismiss the complaint against him and sua sponte cancelled the mortgage.Contrary to plaintiff's contention, Supreme Court properly granted the motion to dismissthe complaint on the ground that plaintiff lacked standing. "A plaintiff establishes itsstanding in a mortgage foreclosure action by demonstrating that it is both the holder orassignee of the subject mortgage and the holder or assignee of the underlying note at thetime the action is commenced" (Kondaur Capital Corp. v McCary, 115 AD3d 649, 650[2014]; see Deutsche BankTrust Co. Ams. v Vitellas, 131 AD3d 52, 59 [2015]; U.S. Bank N.A. v Guy, 125AD3d 845, 846 [2015]). Here, defendant met his burden on his motion to dismiss byestablishing that plaintiff lacked standing because it did not have " '[e]ither awritten assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action' " (US Bank N.A. v Madero, 80 AD3d 751, 753 [2011]; see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361-362 [2015]; cf. Deutsche Bank Trust Co.Ams., 131 AD3d at 59-60), and plaintiff failed to raise a question of fact (cf. US Bank N.A. v Faruque,120 AD3d 575, 578 [2014]; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680,683 [2012]).
Contrary to plaintiff's further contention, the court properly reconsidered defendant'sCPLR 3211 motion to dismiss, having expressly denied the earlier motion with leave torenew after the completion of discovery. Indeed, in the order on appeal and in its writtendecision underlying the order, the court specified that it had "reserved decision" on theearlier motion.
We agree with plaintiff, however, that the court erred in sua sponte cancelling themortgage. Defendant "was not entitled to the judicial determination cancelling anddischarging the subject mortgage and adjudging the subject property free therefrom" (Ruiz v Mortgage Elec. RegistrationSys., Inc., 130 AD3d 1000, 1002 [2015]; see generally IndyMac Bank, F.S.B. v Yano-[*2]Horoski, 78 AD3d 895, 896 [2010]). We thereforemodify the order accordingly. Present—Smith, J.P., Centra, Valentino, Whalenand DeJoseph, JJ.