| Wells Fargo Bank, N.A. v Rooney |
| 2015 NY Slip Op 07833 [132 AD3d 980] |
| October 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, N.A.,Respondent, v Timothy M. Rooney, Appellant, et al.,Defendants. |
Timothy M. Rooney, Pawling, N.Y., appellant pro se.
Hogan Lovells US LLP, New York, N.Y. (Lisa J. Fried, Stacey A. Lara, and HeatherR. Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Timothy M. Rooney appeals (1),as limited by his brief, from so much of an order of the Supreme Court, Dutchess County(Rosa, J.), dated April 15, 2013, as granted those branches of the plaintiff's motion whichwere for summary judgment on the amended complaint insofar as asserted against him, tostrike his answer, and for an order of reference, (2) from a second order of the samecourt, also dated April 15, 2013, which denied his motion, in effect, to vacate an order ofthe same court (DiBella, J.), dated December 19, 2012, which granted the plaintiff'sunopposed motion, inter alia, for leave to serve and file an amended complaint, and (3),as limited by his brief, from so much of an order of the same court dated August 28,2013, as denied that branch of his motion which was for leave to renew his opposition tothose branches of the plaintiff's motion which were for summary judgment on theamended complaint insofar as asserted against him, to strike his answer, and for an orderof reference or, in the alternative, pursuant to CPLR 5015 (a) (3) and (4), in effect, tovacate so much of the order dated April 15, 2013, as granted those branches of theplaintiff's motion.
Ordered that the first order dated April 15, 2013, and the order dated August 28,2013, are affirmed insofar as appealed from; and it is further,
Ordered that the second order dated April 15, 2013, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
" 'In moving for summary judgment in an action to foreclose a mortgage, aplaintiff establishes its case as a matter of law through the production of the mortgage,the unpaid note, and evidence of default' " (Bayview Loan Servicing, LLC v 254 Church St., LLC, 129AD3d 650, 650 [2015], quoting Wells Fargo Bank, N.A. v Webster, 61 AD3d 856, 856[2009]; see Citimortgage, Inc. vChow Ming Tung, 126 AD3d 841, 842 [2015]; Aurora Loan Servs., LLC vEnaw, 126 AD3d 830 [2015]). "Where, as here, the plaintiff's standing tocommence the action is placed in issue by a defendant, the plaintiff must ultimatelyestablish its standing to be entitled to relief" (Citimortgage, Inc. v Chow MingTung, 126 AD3d at 842; seeLoancare v Firshing, 130 AD3d 787 [2015]; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830 [2015]). Aplaintiff establishes its standing in a mortgage foreclosure action by demonstrating that,[*2]when the action was commenced, it was either theholder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627[2014], affd 25 NY3d355 [2015]). "Either a written assignment of the underlying note or the physicaldelivery of the note prior to the commencement of the foreclosure action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident"(U.S. Bank, N.A. vCollymore, 68 AD3d 752, 754 [2009]; see Emigrant Mtge. Co., Inc. v Persad, 117 AD3d 676, 677[2014]; Bank of N.Y. Mellon vGales, 116 AD3d 723, 724 [2014]).
Here, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment on the amended complaint insofar as asserted againstthe defendant Timothy M. Rooney, to strike Rooney's answer, and for an order ofreference. Contrary to Rooney's assertion, the plaintiff established, prima facie, itsentitlement to judgment as a matter of law by demonstrating its standing as the holder ofthe note and mortgage by submitting the affidavit of Alejandro E. Roedel, a vicepresident of loan documentation for the plaintiff, who established that the plaintiff hadphysical possession of the note prior to the commencement of the action (see AuroraLoan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]; HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206 [2d Dept 2015]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 974[2014]; Kondaur Capital Corp.v McCary, 115 AD3d 649, 650 [2014]). The plaintiff also produced copies ofthe mortgage, the unpaid note, and Roedel's affidavit, attesting to Rooney's failure tomake payments due under the mortgage (see Emigrant Bank v Larizza, 129 AD3d 904 [2015]). Inopposition, Rooney failed to raise a triable issue of fact.
The Supreme Court providently exercised its discretion in denying that branch ofRooney's motion which was for leave to renew his opposition to those branches of theplaintiff's motion which were for summary judgment on the amended complaint insofaras asserted against him, to strike his answer, and for an order of reference. A motion forleave to renew "shall be based upon new facts not offered on the prior motion that wouldchange the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e][3]). "The new or additional facts either must have not been known to the party seekingrenewal or may, in the Supreme Court's discretion, be based on facts known to the partyseeking renewal at the time of the original motion" (Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586[2012]; see Rowe vNYCPD, 85 AD3d 1001, 1003 [2011]). " 'However, in either instance, areasonable justification for the failure to present such facts on the original motion mustbe presented' " (Cioffi vS.M. Foods, Inc., 129 AD3d 888, 891 [2015], quoting Deutsche Bank TrustCo. v Ghaness, 100 AD3d at 586).
Here, Rooney failed to establish that the alleged new evidence was not available atthe time of the original motion. Even assuming he had a reasonable justification forfailing to submit this evidence in opposition to the original motion, he failed todemonstrate that it would have changed the prior determination (see Matter of O'Gorman vO'Gorman, 122 AD3d 744, 745 [2014]; Williams v Nassau County Med. Ctr., 37 AD3d 594[2007]; Giovanni v Moran,34 AD3d 733, 734 [2006]).
Rooney's contention that so much of the order of the Supreme Court, DutchessCounty, dated April 15, 2013, as granted those branches of the plaintiff's motion whichwere for summary judgment on the amended complaint insofar as asserted against him, tostrike his answer, and for an order of reference, should be vacated pursuant to CPLR5015 (a) (3) is also without merit. Rooney's "[c]onclusory allegations are not sufficientlyindicative of 'fraud, misrepresentation, or other misconduct' to warrant vacatur of theorder pursuant to CPLR 5015 (a) (3)" (Matter of Callwood v Cabrera, 49 AD3d 394, 394-395[2008]; see SummitbridgeCredit Invs., LLC v Wallace, 128 AD3d 676, 677-678 [2015]). Rooney alsofailed to demonstrate his entitlement to vacatur pursuant to CPLR 5015 (a) (4) on theground that the court lacked subject matter jurisdiction because the plaintiff allegedly didnot have standing to commence the action. The plaintiff established that it had standingto commence the action and, in any event, "[w]hether [a foreclosure] action is beingpursued by the proper party is an issue separate from the subject matter of the action orproceeding, and does not affect the court's power to entertain the case before it" (Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 243 [2007]; see Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d810, 811 [2012]).
The Supreme Court properly denied Rooney's motion, in effect, to vacate his defaultin opposing the plaintiff's motion, inter alia, for leave to serve and file an amendedcomplaint. In [*3]order to vacate his default, Rooney wasrequired to demonstrate "a reasonable excuse for not opposing the motion and apotentially meritorious opposition to the motion" (Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837 [2011]; see Suede v Suede, 124 AD3d869, 871 [2015]; AuroraLoan Servs., LLC v Ahmed, 122 AD3d 557, 558 [2014]; Delvalle v Mercedes Benz USA,LLC, 117 AD3d 893, 893 [2014]; Rocco v Family Foot Ctr., 94 AD3d 1077, 1079 [2012]).Even assuming that Rooney set forth a reasonable excuse for his failure to oppose themotion, he did not set forth a potentially meritorious opposition to the motion. In thisregard, Rooney did not show that the proposed amendment was either palpablyinsufficient or patently devoid of merit or that it would cause him prejudice or surprise(see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d957 [1983]; Vidal v Claremont99 Wall, LLC, 124 AD3d 767 [2015]).
Rooney's remaining contentions are without merit. Rivera, J.P., Leventhal, Austinand Hinds-Radix, JJ., concur.
Motion by the respondent on appeals from three orders of the Supreme Court,Dutchess County, two dated April 15, 2013, and one dated August 28, 2013,respectively, inter alia, to dismiss the appeal from the order dated April 15, 2013, underAppellate Division docket No. 2013-06607, on the ground that the order, in effect,denied reargument. By decision and order on motion of this Court dated June 24, 2014,that branch of the motion was held in abeyance and referred to the panel of Justiceshearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and the argument of the appeals, it is
Ordered that the motion is denied. Rivera, J.P., Leventhal, Austin, and Hinds-Radix,JJ., concur.