| Citimortgage, Inc. v Goldberg |
| 2015 NY Slip Op 09243 [134 AD3d 880] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Respondent, v AdamGoldberg et al., Appellants, et al., Defendants. |
The Motner Law Office, P.C., New York, NY (Moshe Motner of counsel), forappellants.
Akerman LLP, New York, NY (Jordan M. Smith and Michael Shiba of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Adam Goldberg and MarlaineGoldberg appeal, as limited by their brief, from so much of an order of the SupremeCourt, Richmond County (McMahon, J.), dated October 31, 2013, as, in effect, grantedthat branch of the plaintiff's motion which was for summary judgment on the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In a mortgage foreclosure action, the 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]). "Either a written assignment of theunderlying note or the physical delivery of the note prior to the commencement of theforeclosure action is sufficient to transfer the obligation, and the mortgage passes withthe debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754[2009]).
Here, the plaintiff, which commenced this action in its capacity as holder of thesubject note (cf. CWCapitalAsset Mgt., LLC v Great Neck Towers, LLC, 99 AD3d 850, 851 [2012];Fairbanks Capital Corp. v Nagel, 289 AD2d 99, 100 [2001]), demonstrated itsstanding by submitting sufficient evidence of its merger with the previous note holder(see Capital One, N.A. vBrooklyn Flatiron, LLC, 85 AD3d 837, 837 [2011]). In opposition, thedefendants Adam Goldberg and Marlaine Goldberg (hereinafter together the appellants)failed to raise a triable issue of fact (see Grassi & Co., CPAs, P.C. v Janover Rubinroit, LLC,82 AD3d 700, 703 [2011]). Accordingly, the Supreme Court properly granted thatbranch of the plaintiff's motion which was for summary judgment on the complaintinsofar as asserted against the appellants. Rivera, J.P., Chambers, Sgroi and LaSalle, JJ.,concur.