| Rose Land & Fin. Corp. v Vassiliades |
| 2016 NY Slip Op 05856 [142 AD3d 658] |
| August 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Rose Land and Finance Corp.,Respondent, v Neoklis Vassiliades et al., Appellants, et al.,Defendants. |
Charles Wallshein, Melville, NY, for appellants.
Jeffrey A. Kosterich, Tuckahoe, NY (Robert A. Levey of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Neoklis Vassiliades and SoteraVassiliades appeal from an order of the Supreme Court, Nassau County (Adams, J.),entered February 24, 2015, which granted the plaintiff's motion, inter alia, for summaryjudgment on the complaint and for an order of reference.
Ordered that the order is affirmed, with costs.
In April 2013, the plaintiff commenced this action against, among others, thedefendant Neoklis Vassiliades (hereinafter the defendant) arising out of the defendant'sdefault in meeting his payment obligations pursuant to a note and mortgage both datedJune 14, 2007. Thereafter, the defendant interposed an answer and alleged, as anaffirmative defense, that the plaintiff lacked standing. In an order entered February 24,2015, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgmenton the complaint and for an order of reference.
The Supreme Court properly granted the plaintiff's motion, inter alia, for summaryjudgment on the complaint and for an order of reference. The plaintiff established itsprima facie entitlement to judgment as a matter of law by producing copies of the unpaidnote, the mortgage, and evidence of the defendant's default (see LNV Corp. v Francois, 134AD3d 1071 [2015]; TDBank, N.A. v Mandia, 133 AD3d 590 [2015]).
Since the defendant placed the plaintiff's standing in issue, the plaintiff was alsorequired to provide prima facie proof that it had standing at the time the action wascommenced (see LNV Corp. v Francois, 134 AD3d at 1072; Nationstar Mtge., LLC vWong, 132 AD3d 825 [2015]). "A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that it is either the holder or assignee ofthe underlying note at the time the action is commenced" (HSBC Bank USA, N.A. vRoumiantseva, 130 AD3d 983, 984 [2015]; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355,360-362 [2015]). "Either a written assignment of the underlying note or the physicaldelivery of the note prior to the commencement of the foreclosure action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident"(U.S. Bank, N.A. vCollymore, 68 AD3d 752, 754 [2009]; see YMJ Meserole, LLC v 98 Meserole St., LLC, 133 AD3d848, 849 [2015]). Here, the plaintiff established its standing as the holder of the noteby submitting evidence including the note, [*2]whichcontained signed endorsements, and the affidavit of its vice president, which stated thatthe plaintiff obtained physical possession of the note prior to the commencement of theaction (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 360-362; JPMorgan Chase Bank, N.A. vMantle, 134 AD3d 903 [2015]; YMJ Meserole, LLC v 98 Meserole St.,LLC, 133 AD3d at 849). In opposition, the defendant failed to raise a triable issue offact (see LNV Corp. v Francois, 134 AD3d at 1072; Nationstar Mtge., LLC vWong, 132 AD3d at 826).
The appellants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, forsummary judgment on the complaint and for an order of reference. Dillon, J.P.,Chambers, Dickerson and Barros, JJ., concur.