| Bank of N.Y. Mellon v Green |
| 2015 NY Slip Op 07460 [132 AD3d 706] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1](October 14, 2015)
| Bank of New York Mellon, Formerly Known as Bankof New York, as Trustee on Behalf of Citi Mortgage Loan Trust 2007-1,Respondent, v Ernest Green, Appellant, et al.,Defendants. |
Rozario & Associates, P.C., Brooklyn, N.Y. (Rovin R. Rozario of counsel), forappellant.
Shapiro DiCaro & Barak, LLC, Rochester, N.Y. (Austin T. Shufelt of counsel),for respondent.
In an action to foreclose a mortgage, the defendant Ernest Green appeals from anorder of the Supreme Court, Kings County (Kurtz, J.), dated July 23, 2013, which deniedhis motion, in effect, for summary judgment dismissing the complaint for lack ofstanding.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage secured by real propertyowned by the defendant Ernest Green. Green served an answer asserting, as anaffirmative defense, that the plaintiff lacked standing to commence the action. Greenthereafter moved, in effect, for summary judgment dismissing the complaint for lack ofstanding.
Initially, since Green's motion, which recited CPLR 3211 (a) (3) as its basis, wasmade after issue was joined, and since the parties deliberately charted a summaryjudgment course, the Supreme Court properly treated Green's motion as one for summaryjudgment dismissing the complaint for lack of standing (see Meredith v Siben & Siben,LLP, 130 AD3d 791 [2015]; Hopper v McCollum, 65 AD3d 669, 670 [2009]; Tendler v Bais Knesses of NewHempstead, Inc., 52 AD3d 500, 502 [2008]).
Where the issue of standing is raised by a defendant, a plaintiff must prove itsstanding in order to be entitled to relief (see MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev.,LLC, 116 AD3d 745, 746 [2014]; Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]; U.S. Bank, N.A. v Collymore,68 AD3d 752, 753 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, 242 [2007]). However, on a defendant's motion, the burden is on the defendantto establish, prima facie, the plaintiff's lack of standing as a matter of law (see U.S. Bank N.A. v Guy, 125AD3d 845, 847 [2015]; Citibank, N.A. v Herman, 125 AD3d 587, 588-589[2015]).
A plaintiff has standing to commence a foreclosure action when it is either the holderor the assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., [*2]LLC v Taylor, 25 NY3d 355, 361 [2015];Bank of N.Y. v Silverberg, 86 AD3d at 279-280). "Either a written assignment ofthe underlying note or the physical delivery of the note prior to the commencement of theforeclosure action is sufficient to transfer the obligation" (U.S. Bank, N.A. vCollymore, 68 AD3d at 754; see MLCFC 2007-9 Mixed Astoria, LLC v 36-0235th Ave. Dev., LLC, 116 AD3d at 746-747; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909,912 [2013]; Deutsche BankNatl. Trust Co. v Haller, 100 AD3d 680, 682 [2012]; Bank of N.Y. vSilverberg, 86 AD3d at 281).
Here, Green failed to demonstrate his prima facie entitlement to judgment as a matterof law dismissing the complaint for lack of standing, since he failed to eliminatequestions of fact as to whether the subject note was physically delivered and endorsed tothe plaintiff prior to the commencement of the action (see Deutsche Bank Natl. TrustCo. v Haller, 100 AD3d at 683-684). Accordingly, Green's motion was properlydenied without regard to the sufficiency of the opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In light of our determination, we need not reach the plaintiff's remaining contention.Dillon, J.P., Chambers, Hall and Hinds-Radix, JJ., concur.