| Comptroller of State of N.Y. v Level Acres LLC |
| 2015 NY Slip Op 09733 [134 AD3d 1528] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Comptroller of State of New York, as Trustee for theNew York State Common Retirement Fund, Appellant, v Level Acres LLC, Respondent,et al., Defendants. (Appeal No. 1.) |
McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith ofcounsel), for plaintiff-appellant.
Pekarek Law Group, P.C., Wellsville (Edward Pekarek of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Allegany County (Thomas P. Brown,A.J.), entered August 6, 2014. The order denied the motion of plaintiff for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, and the motion is granted.
Memorandum: Plaintiff commenced this foreclosure action after Level Acres LLC(defendant) defaulted on a consolidated note and mortgage (note and mortgage). Inappeal No. 1, plaintiff contends that Supreme Court erred in determining that theassignment of the note and mortgage to plaintiff was invalid, and therefore erred indenying his motion for summary judgment on the complaint. We agree. Although theassignment was executed on May 20, 2010, i.e., before the May 21, 2010 effective dateof the note and mortgage, the assignment states that it was to be effective "as of the 28thday of May, 2010," i.e., after the effective date of the note and mortgage. "[W]hereparties to an agreement expressly provide that a written contract be entered into 'as of' a[specific] date [other] than that on which it was executed, the agreement is effective. . . 'as of' the [specific] date and the parties are bound thereby accordingly"(Colello v Colello, 9 AD3d855, 857 [2004] [internal quotation marks omitted]; see Rosner v MetropolitanProp. & Liab. Ins. Co., 96 NY2d 475, 480 [2001]). We therefore conclude thatthe assignment was valid.
We further conclude that plaintiff met his burden of establishing his entitlement tojudgment as a matter of law by establishing that he was the assignee of the note andmortgage when the action was commenced (see First Franklin Fin. Corp. v Norton, 132 AD3d 1423,1423-1424 [2015]), and by submitting the note and mortgage, along with evidence ofdefendant's default (see HSBCBank USA, N.A. v Prime, L.L.C., 125 AD3d 1307, 1308 [2015]). Defendantfailed to raise a triable issue of fact in opposition (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). We note that, because the assignment waseffective over three years before the foreclosure action was commenced, the court erredin relying on, e.g., Wells FargoBank, N.A. v Marchione (69 AD3d 204 [2009]).
Finally, in light of our determination in appeal No. 1, we dismiss the appeal from theorder in appeal No. 2 as moot. Present—Smith, J.P., Peradotto, Carni, Lindley andWhalen, JJ.