| Citimortgage, Inc. v Klein |
| 2016 NY Slip Op 04687 [140 AD3d 913] |
| June 15, 2016 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Respondent, v Aaron Klein,Appellant, et al., Defendants. |
Menashe & Associates, LLP, Montebello, NY (Chezki Menashe and MichaelDachs of counsel), for appellant.
Akerman LLP, New York, NY (Jordan Smith of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Aaron Klein appeals from (1) anorder of the Supreme Court, Rockland County (Garvey, J.), dated May 23, 2014, (2) anorder of the same court, also dated May 23, 2014, which granted the plaintiff's motion,inter alia, for summary judgment on the complaint and for an order of reference, and (3)a judgment of foreclosure and sale of the same court, dated March 2, 2015, which, uponthe orders, among other things, directed the sale of the subject premises. By decision andorder on motion dated August 14, 2015, this Court, on its own motion, deemed the noticeof appeal from the orders also to be a notice of appeal from the judgment (seeCPLR 5501 [c]; Citibank v Pierre, 213 AD2d 443 [1995]).
Motion by the respondent to dismiss the appeals from the orders, on the ground thatthe right of direct appeal therefrom terminated upon the entry of the judgment offoreclosure and sale in the action. By decision and order on motion of this Court datedAugust 14, 2015, the motion was held in abeyance and referred to the panel of Justiceshearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is
Ordered that the motion is granted; and it is further,
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgment of foreclosure and sale is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeals from the intermediate orders must be dismissed because the right ofdirect appeal therefrom terminated with the entry of the judgment of foreclosure and salein the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised onthe appeals from the orders are brought up for review and have been considered on theappeal from the judgment of foreclosure and [*2]sale(see CPLR 5501 [a] [1]).
The appellant's sole contention on appeal is that the plaintiff failed to prove itsstanding to commence this foreclosure action. Where, as here, a plaintiff's standing tocommence a foreclosure action is placed in issue by the defendant, it is incumbent uponthe plaintiff to prove its standing to be entitled to relief (see Bank of N.Y. Mellon vVisconti, 136 AD3d 950 [2016]; Citimortgage, Inc. v Stosel, 89 AD3d 887, 888 [2011])."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 Aurora Loan Servs., LLC v Taylor, 25 NY3d 355,361-362 [2015]). In this case, the plaintiff established, prima facie, that it had standing tocommence this foreclosure action by submitting the affidavit of its bank officer, whoaverred that she reviewed the summons and complaint with affidavits of service and thenote, which was endorsed in blank by the original lender and purchased by the plaintiffin 2009 prior to the default in payment, and that the plaintiff was the holder of the note atthe time of the commencement of the action (see Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898[2016]; Wells Fargo Bank, N.A.v Rooney, 132 AD3d 980 [2015]). In opposition, the appellant failed to raise atriable issue of fact.
Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, forsummary judgment on the complaint and for an order of reference. Mastro, J.P., Dillon,Hinds-Radix and Maltese, JJ., concur.