| Nationstar Mtge., LLC v Wong |
| 2015 NY Slip Op 07631 [132 AD3d 825] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC,Appellant, v William Wong et al., Defendants. |
Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Queens County (Taylor, J.), entered December 11, 2013, which deniedits unopposed motion for summary judgment on the complaint, an order of reference, andleave to amend the caption, and which, sua sponte, in effect, directed the dismissal of thecomplaint insofar as asserted against the defendant William Wong.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, in effect, directed the dismissal of the complaint insofar as assertedagainst the defendant William Wong is deemed to be an application for leave to appealfrom that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion for summary judgment on the complaint, an order of reference, andleave to amend the caption is granted.
The Supreme Court improperly, sua sponte, directed the dismissal of the complaintinsofar as asserted against the defendant William Wong on the ground that the plaintifflacked standing. " 'A court's power to dismiss a complaint, sua sponte, is to beused sparingly and only when extraordinary circumstances exist to warrantdismissal' " (OnewestBank, FSB v Prince, 130 AD3d 700, 701 [2015], quoting U.S. Bank, N.A. v Emmanuel,83 AD3d 1047, 1048 [2011]; see U.S. Bank N.A. v Polanco, 126 AD3d 883 [2015]; Citimortgage, Inc. v Chow MingTung, 126 AD3d 841 [2015]; Bank of N.Y. v Castillo, 120 AD3d 598 [2014]). Here, theSupreme Court was not presented with extraordinary circumstances warranting the suasponte dismissal of the complaint (see HSBC Bank USA, N.A. v Simmons, 125 AD3d 930,932 [2015]; Onewest Bank,FSB v Fernandez, 112 AD3d 681, 682 [2013]). Moreover, a party's lack ofstanding does not constitute a jurisdictional defect and does not warrant a sua spontedismissal of the complaint by the court (see HSBC Bank USA, N.A. v Simmons,125 AD3d at 932; Wells FargoBank, N.A. v Gioia, 114 AD3d 766, 767 [2014]; HSBC Bank USA, N.A. vTaher, 104 AD3d 815, 817 [2013]; Bank of N.Y. v Alderazi, 99 AD3d 837, 838 [2012];U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048).
Moreover, the Supreme Court erred in denying the plaintiff's unopposed motion forsummary judgment on the complaint, an order of reference, and leave to amend thecaption. A plaintiff seeking to establish prima facie entitlement to judgment as a matterof law in a residential mortgage foreclosure action must produce the mortgage, theunpaid note, and evidence of the default (see Wells Fargo Bank, N.A. v Ali, 122 AD3d 726, 726[2014]; W & H EquitiesLLC v Odums, 113 AD3d 840, 841 [2014]; Washington Mut. Bank v Schenk, 112 AD3d 615, 616[2013]; Wells Fargo Bank, N.A. v Webster, [*2]61 AD3d 856 [2009]). Where, as here, the plaintiff'sstanding has been placed in issue by a defendant's answer, the plaintiff also must proveits standing as part of its prima facie showing (see HSBC Bank USA, N.A. v Baptiste, 128 AD3d 773[2015]). In a foreclosure action, a plaintiff has standing if it is either the holder of, or theassignee of, the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC vTaylor, 114 AD3d 627 [2014], affd 25 NY3d 355 [2015]).
Contrary to the plaintiff's contention, Wong raised the issue of the plaintiff's standingby interposing an answer which, in effect, denied the plaintiff's allegation that it was theholder of the note (see CPLR 3018; Bank of Am., N.A. v Paulsen, 125 AD3d 909, 910 [2015];US Bank N.A. v Faruque,120 AD3d 575, 576 [2014]). Further, contrary to the Supreme Court's determination,the plaintiff established its standing to commence the action. The affidavit of theplaintiff's assistant secretary was sufficient to establish, prima facie, that the mortgageand note were physically delivered to the plaintiff prior to commencement of the action(see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362). Moreover, the plaintiffestablished its prima facie entitlement to judgment as a matter of law by producing themortgage, the unpaid note, and evidence of Wong's default (see W & H EquitiesLLC v Odums, 113 AD3d at 841).
Since no opposition to the motion was submitted by the defendants, they failed toraise a triable issue of fact (seeOnewest Bank, FSB v Prince, 130 AD3d 700, 702 [2015]; Citimortgage, Inc. v Chow MingTung, 126 AD3d 841, 843 [2015]; Flagstar Bank v Bellafiore, 94 AD3d 1044, 1045[2012]).
Accordingly, the Supreme Court should have granted the plaintiff's unopposedmotion for summary judgment on the complaint, an order of reference, and leave toamend the caption. Eng, P.J., Chambers, Roman and Barros, JJ., concur.