| BAC Home Loans Servicing, LP v Bixby |
| 2016 NY Slip Op 00073 [135 AD3d 1009] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| Bac Home Loans Servicing, LP, Formerly Known asCountrywide Home Loans Servicing LP, Appellant, v Barbara Bixby, Respondent, et al.,Defendants. |
Kozeny, McCubbin & Katz, LLP, Melville (David Wildermuth of counsel), forappellant.
D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), Syracuse, forrespondent.
Devine, J. Appeal from an order of the Supreme Court (Cerio Jr., J.), entered July 1,2013 in Madison County, which, among other things, granted defendant Barbara Bixby'smotion for summary judgment dismissing the complaint against her.
In February 2005, defendant Barbara Bixby (hereinafter defendant) executed a noteto borrow $164,000 from Opus Home Equity Services, Inc. that was secured by amortgage on certain real property in the Town of Sullivan, Madison County. Plaintiffcommenced this foreclosure action against defendant and others in June 2009.Defendants answered and asserted, among other things, that plaintiff was not the holderof the note and mortgage at the time the action was commenced. While the papers are notincluded in the record, it appears that plaintiff moved for summary judgment dismissingthe second defense and counterclaim in defendant's answer, and that said motion washeld in abeyance pending a motion by defendant to dismiss the complaint.[FN*] Defendant thereaftermoved for summary judgment [*2]dismissing thecomplaint on her first defense and counterclaim, which advanced the standing argument.Supreme Court denied plaintiff's motion and granted defendant's motion, and plaintiffnow appeals.
Defendant raised the affirmative defense of standing and, as such, plaintiff willultimately be required to prove that it has standing in order to obtain a judgment offoreclosure (Bank of N.Y.Mellon v Green, 132 AD3d 706, 707 [2015]; see Bank of Am., N.A. v Kyle,129 AD3d 1168, 1169 [2015]). "However, on a defendant's motion [for summaryjudgment], the burden is on the defendant to establish, prima facie, the plaintiff's lack ofstanding as a matter of law" (Bank of N.Y. Mellon v Green, 132 AD3d at 707[citations omitted]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; see also DeutscheBank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]).
A plaintiff has standing to bring a mortgage foreclosure action if, "at the time theaction was commenced, [it] was the holder or assignee of the mortgage and the holder orassignee of the underlying note" (Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737,738 [2015]; see Bank of Am., N.A. v Kyle, 129 AD3d at 1169). Defendant raisedissues as to whether the formal assignment of the mortgage to plaintiff had been properlyaccomplished. She did not, however, provide any proof to call into question the claim ofplaintiff that it was the owner and holder of the note. A mortgage generally passes as anincident to the note when the latter is assigned, making "the note . . . thedispositive instrument that conveys standing to foreclose under New York law" (Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]; see Deutsche Bank Natl. Trust Co. vMonica, 131 AD3d at 738; Bank of N.Y. v Silverberg, 86 AD3d 274, 280 [2011]).Inasmuch as defendant failed to show why that general proposition would beinapplicable here, she did not satisfy her initial burden of demonstrating as a matter oflaw that plaintiff lacked standing to commence this action, and her motion should havebeen denied without regard to the sufficiency of the papers submitted in opposition(see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Bank of N.Y.Mellon v Green, 132 AD3d at 707).
Finally, we decline plaintiff's invitation to search the anemic record before us andgrant it summary judgment (see CPLR 3212 [b]).
Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted defendant BarbaraBixby's motion for summary judgment; said motion denied; and, as so modified,affirmed.
Footnote *:We note that plaintiffwas required to submit these motion papers in its record on appeal pursuant to CPLR5526. Nevertheless, because plaintiff's motion for partial summary judgment related toclaims with no connection to the issues raised on appeal, we cannot say that the absenceof those papers "renders meaningful appellate review impossible" so as to requiredismissal of the appeal (Mergl vMergl, 19 AD3d 1146, 1147 [2005]; see Singh v Getty Petroleum Corp.,275 AD2d 740, 740 [2000]).