| Bank of N.Y. Mellon v Visconti |
| 2016 NY Slip Op 01276 [136 AD3d 950] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, Formerly Known as Bankof New York, Respondent, v Katarzyna Visconti, Appellant, et al.,Defendants. |
Adam Seiden, Mount Vernon, NY, for appellant.
Maurice Wutscher LLP, New York, NY (Thomas R. Dominczyk of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Katarzyna Visconti appeals, aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Jamieson, J.), entered February 25, 2015, as granted that branch of the plaintiff's motionwhich was for summary judgment on the complaint insofar as asserted against her.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Where, as here, a plaintiff's standing to commence a foreclosure action is placed inissue by the defendant, it is incumbent upon the plaintiff to prove its standing to beentitled to relief" (Citimortgage,Inc. v Stosel, 89 AD3d 887, 888 [2011]). A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that it was either the holder or assignee ofthe underlying note at the time the action was commenced (see Aurora Loan Servs., LLC vTaylor, 114 AD3d 627 [2014], affd 25 NY3d 355 [2015]; Bank of N.Y. v Silverberg, 86AD3d 274, 279 [2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2009])."Either a written assignment of the underlying note or the physical delivery of the noteprior to the commencement of the foreclosure action is sufficient to transfer theobligation, and the mortgage passes with the debt as an inseparable incident" (U.S.Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95,108 [2011]).
Here, in support of that branch of its motion which was for summary judgment onthe complaint insofar as asserted against the defendant Katarzyna Visconti, the plaintiffdemonstrated, prima facie, its standing as the holder of the note by submitting theaffidavit of Seth Downing, an assistant vice president for the plaintiff's loan servicer,who established that the plaintiff had physical possession of the note prior to thecommencement of the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at361; Wells Fargo Bank, N.A. vRooney, 132 AD3d 980 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1207[2015]; Kondaur Capital Corp.v McCary, 115 AD3d 649, 650 [2014]). The plaintiff further established, primafacie, its entitlement to judgment as a matter of law by producing the mortgage, theunpaid note, and evidence of Visconti's default (see Emigrant Bank v Larizza, 129 AD3d 904, 905 [2015]).In opposition, Visconti failed to raise a triable issue of fact. Visconti's remainingcontentions are without merit.
[*2] Accordingly,the Supreme Court properly granted that branch of the plaintiff's motion which was forsummary judgment on the complaint insofar as asserted against Visconti. Chambers, J.P.,Austin, Miller and LaSalle, JJ., concur.