| LNV Corp. v Francois |
| 2015 NY Slip Op 09655 [134 AD3d 1071] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| LNV Corporation, Respondent, v JovanFrancois, Appellant, et al., Defendants. |
Biolsi Law Group P.C., New York, NY (Steven Alexander Biolsi of counsel), forappellant.
Stein, Wiener & Roth, LLP, Carle Place, NY (Gerald Roth and Ruth Taranto ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Jovan Francois appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County (Vaughan,J.), dated June 26, 2014, as granted that branch of the plaintiff's motion which was forsummary judgment on the complaint insofar as asserted against him and denied his crossmotion for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the plaintiff's motion which wasfor summary judgment on the complaint insofar as it was related to the defendant JovanFrancois (hereinafter the appellant) and denied the appellant's cross motion for summaryjudgment dismissing the complaint insofar as asserted against him. A plaintiff in amortgage foreclosure action establishes its prima facie entitlement to judgment as amatter of law by producing the mortgage, the unpaid note, and evidence of thedefendant's default (seeLoancare v Firshing, 130 AD3d 787, 788 [2015]; Wells Fargo Bank, N.A. vErobobo, 127 AD3d 1176, 1177 [2015]; Wells Fargo Bank, N.A. v DeSouza, 126 AD3d 965[2015]; Citimortgage, Inc. vChow Ming Tung, 126 AD3d 841, 842 [2015]; US Bank N.A. v Weinman,123 AD3d 1108, 1109 [2014]). Where, as here, a defendant challenges the plaintiff'sstanding to maintain the action, the plaintiff must also prove its standing as part of itsprima facie showing (see HSBCBank USA, N.A. v Roumiantseva, 130 AD3d 983 [2015]; HSBC Bank USA, N.A. vBaptiste, 128 AD3d 773, 774 [2015]; Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689[2014]). A plaintiff establishes its standing in a mortgage foreclosure action bydemonstrating that it is the holder or assignee of the underlying note at the time theaction is commenced (see Bankof Am., N.A. v Paulsen, 125 AD3d 909, 910 [2015]; US Bank N.A. v Faruque, 120AD3d 575, 577 [2014]).
Contrary to the appellant's contention, the plaintiff established its standing as theholder of the note by submitting the affidavit of its representative demonstrating that thenote was physically delivered to it and remained in its possession at the time thisforeclosure action was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355,361-362 [2015]; Loancare v Firshing, [*2]130AD3d at 788; HSBC BankUSA, N.A. v Sage, 112 AD3d 1126, 1127 [2013]). Moreover, while themortgage passes with the note as an incident thereto and is not dispositive in determiningthe issue of standing (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at361-362; Bank of N.Y. vSilverberg, 86 AD3d 274, 280 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]),the plaintiff also presented evidence that the mortgage was assigned to it prior to thecommencement of the action (see Loancare v Firshing, 130 AD3d at 788;HSBC Bank USA, N.A. v Baptiste, 128 AD3d at 774). Additionally, the plaintiffestablished its prima facie entitlement to judgment as a matter of law by producing themortgage, the unpaid note, and evidence of the appellant's default in repayment of theloan (see Brighton BK, LLC vKurbatsky, 131 AD3d 1000, 1001 [2015]; Emigrant Bank v Larizza, 129 AD3d 904, 905 [2015]). Theappellant failed to raise a triable issue of fact in opposition to the plaintiff's prima facieshowing.
The appellant's remaining contentions are without merit. Mastro, J.P., Dickerson,Roman and Maltese, JJ., concur.