| Deutsche Bank Natl. Trust Co. v Naughton |
| 2016 NY Slip Op 02317 [137 AD3d 1199] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee forthe Certificate Holders of Soundview Home Loan Trust 2006-OPT2, Asset-BackedCertificates, Series 2006-OPT2, Appellant, v Michael Naughton et al.,Defendants. |
Hinshaw & Culbertson, LLP, New York, NY (Dana B. Briganti of counsel), forappellant.
Michael Naughton, Baldwin, NY, defendant pro se.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Nassau County (Adams, J.), entered April 17, 2013, which, in effect,denied that branch of its unopposed motion which was for summary judgment dismissingthe defendant Michael Naughton's first, third, and fourth affirmative defenses, whichasserted lack of standing.
Ordered that the order is reversed, on the law, with costs, and that branch of theplaintiff's unopposed motion which was for summary judgment dismissing the defendantMichael Naughton's first, third, and fourth affirmative defenses, which asserted lack ofstanding, is granted.
In this action to foreclose a mortgage, the plaintiff moved for summary judgmentdismissing the defendant Michael Naughton's affirmative defenses and counterclaims. Inrelevant part, Naughton's first, third, and fourth affirmative defenses asserted that theplaintiff lacked standing. For the plaintiff to establish its prima facie entitlement tojudgment as a matter of law dismissing those affirmative defenses, it had to demonstratethat it was the holder or assignee of the subject note when the action was commenced (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361 [2015]; Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980 [2015])."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 752, 754 [2009]; see Deutsche Bank Natl. Trust Co. v Weiss, 133 AD3d 704[2015]).
Here, the plaintiff submitted an affidavit of James Brantley, a vice president of itsloan servicer. Brantley averred that, based on his personal knowledge and his review ofthe books and business records maintained by the plaintiff, the loan servicer, and theiragents in the ordinary course of business with respect to the mortgage loan, the note andmortgage "were physically transferred to" the plaintiff on or about April 7, 2006.Through Brantley's affidavit, the plaintiff established, prima facie, that it has standing toprosecute this action because it was in possession of the note before the November 2009commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3dat 359-361; Wells Fargo Bank,N.A. v Charlaff, 134 AD3d 1099 [2015]; LNV Corp. v Francois, 134 AD3d 1071 [2015]; JPMorgan Chase Bank, N.A. vMantle, 134 AD3d 903 [2015]). The failure of Brantley's affidavit to include acertificate of conformity pursuant to CPLR 2309 (c) was not fatal (see CPLR2001; Seiden v Sonstein,127 AD3d 1158, 1161-1162 [2015]; Midfirst Bank v Agho, 121 AD3d 343, 349, 351-352[2014]; Mack-Cali Realty, L.P.v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013]). Since theplaintiff established its standing by physical delivery of the note, we need not address thevalidity of the subsequent assignment to it of the mortgage (see Deutsche Bank Natl. Trust Co.v Whalen, 107 AD3d 931, 932 [2013]).
The Supreme Court rejected Naughton's opposition papers on the ground that theywere served in violation of CPLR 2214. Thus, Naughton failed to raise a triable issue offact in opposition to the plaintiff's prima facie showing of entitlement to judgment as amatter of law dismissing his first, third, and fourth affirmative defenses (see Nationstar Mtge., LLC vWong, 132 AD3d 825, 826 [2015]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841,842 [2015]; Midfirst Bank v Agho, 121 AD3d at 351). Accordingly, the SupremeCourt should have granted that branch of the plaintiff's motion which was for summaryjudgment dismissing those affirmative defenses.
We do not address the plaintiff's arguments regarding those branches of its motionwhich were for summary judgment dismissing Naughton's remaining 13 affirmativedefenses and six counterclaims. The Supreme Court did not grant or deny those branchesof the plaintiff's motion, and accordingly, they remain pending and undecided (seeKatz v Katz, 68 AD2d 536 [1979]). Hall, J.P., Austin, Sgroi and LaSalle, JJ.,concur.