| Citimortgage, Inc. v Simon |
| 2016 NY Slip Op 02313 [137 AD3d 1190] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Respondent, v RandolphSimon, Also Known as Randolph R.A. Simon, et al., Appellants, et al.,Defendants. |
Alice A. Nicholson, Brooklyn, NY, for appellants.
Akerman LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Randolph Simon, also known asRandolph R.A. Simon, and Ann Lucy Francis appeal, (1) as limited by their brief, fromso much of an order of the Supreme Court, Queens County (Flug, J.), dated December19, 2013, as denied their cross motion for summary judgment dismissing the complaintinsofar as asserted against them, and (2) from an order of the same court dated May 6,2015, which granted the plaintiff's renewed motion for summary judgment on thecomplaint and dismissing their affirmative defenses, and for an order of reference.
Ordered that the order dated December 19, 2013 is affirmed insofar as appealedfrom; and it is further,
Ordered that the order dated May 6, 2015 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage. The defendantsRandolph Simon, also known as Randolph R.A. Simon, and Ann Lucy Francis(hereinafter together the borrowers) appeared and interposed an answer alleging, interalia, that the plaintiff did not have standing to commence the action.
The plaintiff subsequently moved for summary judgment on the complaint anddismissing the borrowers' affirmative defenses, and for an order of reference. Theborrowers opposed the plaintiff's motion and cross-moved for summary judgmentdismissing the complaint insofar as asserted against them. The borrowers argued that theplaintiff lacked standing and that it failed to comply with the notice requirements ofRPAPL 1304. In the first order appealed from, dated December 19, 2013, the SupremeCourt denied the plaintiff's motion, with leave to renew, and denied the borrowers' crossmotion.
[*2] The plaintiff thereafter renewedits motion for summary judgment on the complaint and dismissing the borrowers'affirmative defenses, and for an order of reference. The borrowers opposed the renewedmotion. In the second order appealed from, dated May 6, 2015, the Supreme Courtgranted the plaintiff's renewed motion for summary judgment on the complaint anddismissing the borrowers' affirmative defenses, and for an order of reference.
"Where the issue of standing is raised by a defendant, a plaintiff must prove itsstanding in order to be entitled to relief" (Bank of N.Y. Mellon v Green, 132 AD3d 706, 707 [2015];see Deutsche Bank Trust Co.Ams. v Vitellas, 131 AD3d 52, 59 [2015]). "However, on a defendant's motion,the burden is on the defendant to establish, prima facie, the plaintiff's lack of standing asa matter of law" (Bank of N.Y. Mellon v Green, 132 AD3d at 707; see U.S. Bank N.A. v Guy, 125AD3d 845, 847 [2015]).
Here, the borrowers failed to demonstrate their prima facie entitlement to judgmentas a matter of law dismissing the complaint for lack of standing, since they failed toeliminate issues of fact as to whether the plaintiff had physical possession of the subjectnote at the time the action was commenced (see Bank of N.Y. Mellon v Green,132 AD3d at 707; U.S. BankN.A. v Pia, 73 AD3d 752, 753 [2010]; see also Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d680, 683 [2012]). The borrowers also failed to establish their prima facie entitlementto judgment as a matter of law on the ground that the plaintiff failed to comply with thenotice provisions of RPAPL 1304. The borrowers failed to submit evidence to show thatthe subject loan was a "home loan" within the meaning of the RPAPL 1304 and thereforesubject to the statutory notice requirements (RPAPL 1304 [5]; see Richlew Real Estate Venture vGrant, 131 AD3d 1223, 1224 [2015]; US Bank N.A. v Caronna, 92 AD3d 865, 866 [2012]).Accordingly, the Supreme Court properly denied the borrowers' cross motion forsummary judgment dismissing the complaint insofar as asserted against them, withoutregard to the sufficiency of the opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851 [1985]).
Contrary to the borrowers' contention, the Supreme Court properly granted theplaintiff's renewed motion for summary judgment on the complaint and dismissing theiraffirmative defenses, and for an order of reference. The plaintiff established its primafacie entitlement to judgment as a matter of law by producing copies of the unpaid note,the mortgage, and evidence of default (see Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099[2015]; Deutsche Bank Natl.Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015]; HSBC Bank, USA vHagerman, 130 AD3d 683, 683-684 [2015]). The plaintiff also established thatit had standing to commence this action by submitting an affidavit of an individualemployed by it as a business operations analyst, which established that the plaintiff hadphysical possession of the note prior to the commencement of this action (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 359-360 [2015]; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099[2015]; HSBC Bank USA, N.A.v Spitzer, 131 AD3d 1206, 1207 [2015]; Deutsche Bank Natl. Trust Co. vAbdan, 131 AD3d at 1002; HSBC Bank, USA v Hagerman, 130 AD3d at683-684). In addition, the plaintiff demonstrated that the subject loan was not a "homeloan" within the meaning of RPAPL 1304, and that it was therefore not required tocomply with the statutory notice provisions (RPAPL 1304 [5]; see Fairmont Capital, LLC vLaniado, 116 AD3d 998, 998-999 [2014]). In opposition to the plaintiff's primafacie showing, the borrowers failed to raise a triable issue of fact as to the merits of theaction, the plaintiff's standing, or the applicability of RPAPL 1304 (see HSBC BankUSA, N.A. v Spitzer, 131 AD3d at 1207; Fairmont Capital, LLC v Laniado,116 AD3d at 998-999; MendelGroup, Inc. v Prince, 114 AD3d 732, 733 [2014]). Mastro, J.P., Hall, Miller andLaSalle, JJ., concur.