| TD Bank, N.A. v Mandia |
| 2015 NY Slip Op 07965 [133 AD3d 590] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| TD Bank, N.A., Formerly Known as Commerce Bank,N.A., Respondent, v Robert Mandia et al., Appellants, et al.,Defendant. |
Robert Mandia and Connie Mandia, Staten Island, N.Y., appellants pro se (one brieffiled).
Duane Morris LLP, New York, N.Y. (Brett L. Messinger and Patricia H. HeerPiskorski of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Robert Mandia and ConnieMandia appeal, as limited by their brief, from (1) so much of an order of the SupremeCourt, Richmond County (Maltese, J.), dated February 11, 2013, as granted the plaintiff'smotion for leave to reargue that branch of its prior motion which was for summaryjudgment on the complaint and its opposition to the cross motion of the defendantsRobert Mandia and Connie Mandia for summary judgment dismissing the complaintinsofar as asserted against them, which had been determined in a prior order of the samecourt dated August 22, 2012, and, upon reargument, vacated the order dated August 22,2012, and thereupon granted that branch of the plaintiff's motion and denied the crossmotion, and (2) so much of an order of the same court dated April 3, 2013, as grantedthat branch of the plaintiff's motion which was to appoint a referee to ascertain andcompute the amount due.
Ordered that the orders dated February 11, 2013, and April 3, 2013, are affirmedinsofar as appealed from, with one bill of costs to the plaintiff.
The Supreme Court properly granted that branch of the plaintiff's motion which wasfor leave to reargue on the basis that the court, in determining that branch of theplaintiff's prior motion which was for summary judgment on the complaint, hadoverlooked one of the two affidavits of an employee of the plaintiff that had beensubmitted by the plaintiff (see CPLR 2221 [d]).
Thereafter, upon reargument, the Supreme Court properly awarded the plaintiffsummary judgment on the complaint. Generally, "[i]n residential mortgage foreclosureactions . . . a plaintiff establishes its prima facie entitlement to judgment as amatter of law by producing the mortgage and the unpaid note, and evidence of thedefault" (Midfirst Bank vAgho, 121 AD3d 343, 347 [2014]; see W & H Equities LLC v Odums, 113 AD3d 840[2014]; Washington Mut. Bankv Schenk, 112 AD3d 615, 616 [2013]). Here, the plaintiff submitted themortgage and note, and evidence of default. Further, the plaintiff submitted prima facieproof that it properly mailed to the defendants Robert Mandia and Connie Mandia(hereinafter together the defendants) a notice of default and acceleration, and a noticepursuant to RPAPL 1304. In opposition, the defendants failed to raise a triable issue offact (see PHH Mtge. Corp. vIsrael, 120 AD3d 1329 [2014]; see also U.S. Bank N.A. v Tate, 102 AD3d 859[2013]).
[*2] "However, where, as here,standing has been made an issue, a plaintiff must also provide prima facie proof that ithad standing to sue as of the time it commenced the action" (PNC Bank, N.A. v Klein, 125AD3d 953, 954-955 [2015]; see Citimortgage, Inc. v Stosel, 89 AD3d 887, 888 [2011]).The plaintiff met this burden by submitting evidence showing that the initial mortgagee,Commerce Bank, N.A., merged in 2008 with the plaintiff TD Bank, N.A., whereuponTD Bank, N.A., became the holder of the note (see Banking Law§ 602; AuroraLoan Servs., LLC v Taylor, 25 NY3d 355 [2015]; PNC Bank, N.A. vKlein, 125 AD3d at 955). In opposition, the defendants failed to raise a triable issueof fact (see PNC Bank, N.A. v Klein, 125 AD3d at 955). Therefore, uponreargument, the Supreme Court properly rejected the defendants' affirmative defense oflack of standing and granted that branch of the plaintiff's motion which was for summaryjudgment on the complaint (seeWells Fargo Bank, N.A. v Arias, 121 AD3d 973, 974 [2014]; Central Mtge. Co. vMcClelland, 119 AD3d 885, 886 [2014]).
The defendants' remaining contentions regarding the appointment of a referee, theservice of a proposed order of reference, and the plaintiff's failure to submit a completecopy of the original motion papers on its reargument motion, are without merit(see 22 NYCRR 202.48; CPLR 2221; Rostant v Swersky, 79 AD3d 456, 456-457 [2010]).Rivera, J.P., Dickerson, Miller and Duffy, JJ., concur. [Prior Case History: 2013 NYSlip Op 30337(U).]