| Woori Am. Bank v Global Universal Group Ltd. |
| 2015 NY Slip Op 08825 [134 AD3d 699] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| SDF 19 Linden, LLC, as Assignee of Woori AmericaBank, Respondent, v Global Universal Group Ltd., Appellant, et al.,Defendants. |
Victor Tsai, Brooklyn, N.Y., for appellant.
Kriss & Feuerstein LLP, New York, N.Y. (Jerold C. Feuerstein and MichelleMandelstein of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Global Universal Group Ltd.appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), datedOctober 25, 2013, which granted the plaintiff's motion, inter alia, for summary judgmenton the complaint, denied its cross motion for summary judgment dismissing thecomplaint, and, thereupon, amended the caption by substituting SDF 19 Linden, LLC, asthe plaintiff.
Ordered that the order is affirmed, with costs.
In August 2006, the defendant Global Universal Group Ltd. (hereinafter Global)executed a note in the amount of $9,100,000 in favor of Woori America Bank(hereinafter Woori), and delivered to Woori a mortgage on certain real property inQueens to secure repayment of the note. Global allegedly defaulted in May 2011, andthereafter, by failing to pay the monthly sums owed and by failing to pay property taxesand utility expenses. On or about January 12, 2012, Woori commenced this action toforeclose the mortgage by filing a summons and complaint verified by an assistant vicepresident of Woori, based upon his personal knowledge and his review of recordsmaintained by Woori. The complaint alleged that Global's last payment was received onApril 1, 2011.
By notice of motion dated October 24, 2012, Woori moved, inter alia, for summaryjudgment on the complaint. On November 28, 2012, Woori assigned its interest in themortgage and note to SDF 19 Linden, LLC (hereinafter SDF 19). In March 2013, Globalcross-moved for summary judgment dismissing the complaint. The Supreme Courtgranted the motion, denied the cross motion, and, thereupon, amended the caption bysubstituting SDF 19 as the plaintiff.
In a mortgage foreclosure action, a plaintiff has standing where it is the holder orassignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]; US Bank N.A. v Cange, 96 AD3d 825, 826 [2012]; Bank of N.Y. v Silverberg, 86AD3d 274, 279 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754[2009]). Contrary to Global's contention, in the event that a note and mortgage arevalidly assigned to a third party subsequent to the commencement of a foreclosure action,as was the case here, the assignee can continue an action in the name of the originalmortgagee, even in the absence of a formal substitution (see CPLR 1018; Lincoln Sav. Bank, FSB vWynn, 7 AD3d 760 [2004]; Central Fed. Sav. v 405 W. 45th St., 242AD2d 512 [1997]). Moreover, an assignee may, if it chooses, take the steps necessary toeffect a formal substitution. [*2]Here, upon proof that themortgage and the underlying debt were assigned by Woori to SDF 19, the Supreme Courtprovidently exercised its discretion by amending the caption to substitute SDF 19 as theplaintiff (see CPLR 1018; Deutsche Bank Trust Co., Ams. v Stathakis, 90 AD3d 983,983 [2011]; Maspeth Fed. Sav.& Loan Assn. v Simon-Erdan, 67 AD3d 750, 751 [2009]).
A plaintiff seeking summary judgment in a mortgage foreclosure action establishesits prima facie entitlement to judgment as a matter of law by producing the mortgage andthe unpaid note, and evidence of the default, by proof in admissible form (seeCPLR 3212 [b]; US Bank N.A.v Madero, 125 AD3d 757, 758 [2015]; W & H Equities LLC v Odums, 113 AD3d 840, 841[2014]; Washington Mut. Bankv Schenk, 112 AD3d 615, 616 [2013]; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856, 856[2009]). Here, Woori, the original plaintiff, met that burden by producing the relevantdocuments and the complaint verified by one of its officers based upon that officer'spersonal knowledge of Woori's records (see CPLR 105 [u]; Kempf v Magida, 37 AD3d763 [2007]; Lebar Constr. Corp. v HRH Constr. Corp., 292 AD2d 506, 507[2002]).
In opposition, Global argued that there was a triable issue of fact as to whether SDF19 acted with unclean hands in refusing to subsequently close on a bridge loan during thependency of Woori's motion. Although the bridge loan negotiations were related to themortgage, since such a loan might have afforded Global an opportunity to refinance, thebridge loan transaction was entirely separate from the underlying mortgage. Accordingly,those two matters were not so inextricably intertwined that factual issues surrounding thecontemplated bridge loan warranted the denial of Woori's motion for summary judgmentin the foreclosure action (seeImperial Capital Bank v 11-13-15 Old Fulton D, LLC, 88 AD3d 652, 654[2011]; LaSalle Bank N.A. v Kosarovich, 31 AD3d 904, 906 [2006]; FleetBank v Pine Knoll Corp., 290 AD2d 792, 794 [2002]). Therefore, the motion, interalia, for summary judgment on the complaint was properly granted, as Global failed toraise a triable issue of fact in opposition to Woori's prima facie showing of entitlement tojudgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557[1980]).
Global's remaining contentions are without merit. Mastro, J.P., Dickerson, Austinand Maltese, JJ., concur.