| Arch Bay Holdings, LLC-Series 2010B v Smith |
| 2016 NY Slip Op 00913 [136 AD3d 719] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Arch Bay Holdings, LLC-Series 2010B,Respondent, v Daisey R. Smith, Also Known as Daisy R. Smith, et al.,Appellants, et al., Defendants. |
Law Office of Beverly Benjamin-George, P.C., Jamaica, NY (BeverlyBenjamin-George of counsel), for appellants.
Knuckles, Komosinski & Elliott, LLP, Elmsford, NY (Jordan J. Manfro ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Daisey R. Smith, also known asDaisy R. Smith, and Mary H. Smith, also known as Mary Smith, appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Butler, J.),entered May 30, 2013, as denied that branch of their motion which was pursuant toCPLR 3211 (a) (3) to dismiss the amended complaint insofar as asserted against them forlack of standing.
Ordered that the order is affirmed insofar as appealed from, with costs.
A plaintiff establishes its standing in a mortgage foreclosure action by demonstratingthat, when the action was commenced, it was either the holder or assignee of theunderlying note (see WellsFargo Bank, N.A. v Rooney, 132 AD3d 980, 981 [2015]; Aurora Loan Servs., LLC vTaylor, 114 AD3d 627, 628 [2014], affd 25 NY3d 355 [2015]). The plaintiff may demonstratethat it is the holder or assignee of the underlying note by showing either a writtenassignment of the underlying note or the physical delivery of the note prior to thecommencement of the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d355 [2015]; Kondaur CapitalCorp. v McCary, 115 AD3d 649, 650 [2014]; Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 108 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]).On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lackof standing, the burden is on the moving defendant to establish, prima facie, theplaintiff's lack of standing as a matter of law (see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d1061, 1062 [2011]). To defeat the motion, a plaintiff must submit evidence whichraises a question of fact as to its standing (see US Bank N.A. v Faruque, 120 AD3d 575, 578 [2014];Deutsche Bank Natl. Trust Co. vHaller, 100 AD3d 680, 683 [2012]).
Here, by adducing evidence that the note was in its possession and the mortgage hadbeen assigned to it prior to the commencement of the action, the plaintiff made ashowing sufficient to deny that branch of the appellants' motion which was pursuant toCPLR 3211 (a) (3) to dismiss the amended complaint insofar as asserted against them forlack of standing (see NationstarMtge., LLC v Catizone, 127 AD3d 1151 [2015]; US Bank N.A. v Faruque, 120AD3d 575 [2014]). Rivera, J.P., Sgroi, Miller and Hinds-Radix, JJ., concur.