| LaSalle Bank, N.A. v Zaks |
| 2016 NY Slip Op 02779 [138 AD3d 788] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| LaSalle Bank, N.A., as Trustee for WAMU MortgagePass-Through Certificates Series 2007-HY3 Trust, Respondent, v Aryeh Zaks,Appellant, et al., Defendants. |
Philip J. Murphy, New City, NY, for appellant.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J.Flickinger of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Aryeh Zaks appeals from ajudgment of foreclosure and sale of the Supreme Court, Rockland County (Garvey, J.),dated April 14, 2014, which, upon an order of the same court dated July 27, 2009, interalia, granting that branch of the plaintiff's motion which was for summary judgment onthe complaint and to appoint a referee, among other things, directed the sale of thesubject premises. By decision and order on motion dated February 3, 2015, this Courtgranted the renewed motion of the defendant Aryeh Zaks to stay the foreclosure sale ofthe subject premises pending hearing and determination of the appeal.
Ordered that the judgment of foreclosure and sale is reversed, on the law, with costs,that branch of the plaintiff's motion which was for summary judgment on the complaintand to appoint a referee is denied, and the order dated July 27, 2009, is modifiedaccordingly.
In a mortgage foreclosure action, a plaintiff establishes its prima facie entitlement tojudgment as a matter of law by producing the mortgage, the unpaid note, and evidence ofdefault (see Loancare vFirshing, 130 AD3d 787, 788 [2015]; Wells Fargo Bank, N.A. v Erobobo, 127 AD3d 1176[2015]; Wells Fargo Bank, N.A.v DeSouza, 126 AD3d 965 [2015]; One W. Bank, FSB v DiPilato, 124 AD3d 735 [2015]).Where, as here, the plaintiff's standing has been placed in issue by the defendant'sanswer, the plaintiff also must prove its standing as part of its prima facie showing (see HSBC Bank USA, N.A. vBaptiste, 128 AD3d 773 [2015]). In a foreclosure action, a plaintiff has standingif it is either the holder or assignee of the underlying note at the time the action wascommenced (see Aurora LoanServs., LLC v Taylor, 25 NY3d 355, 361 [2015]; see generally Emigrant Sav.Bank-Brooklyn/Queens v Doliscar, 124 AD3d 831 [2015]; HSBC Bank USA vHernandez, 92 AD3d 843 [2012]).
Here, although the plaintiff produced the mortgage, the unpaid note, and evidence ofdefault in support of that branch of its motion which was for summary judgment on thecomplaint, it failed to establish that it had standing to commence this action. Theevidence the plaintiff tendered did not establish either that the note was assigned to itprior to the commencement of the action or that the note was physically delivered to itprior to the commencement of the action (see Bank of Am., N.A. v Paulsen, 125 AD3d 909 [2015]; U.S. Bank N.A. v Dellarmo,94 AD3d 746, 748 [2012]). Accordingly, the plaintiff was not entitled to summaryjudgment on the complaint and the appointment of a referee. Hall, J.P., Cohen, LaSalleand Connolly, JJ., concur.