Deutsche Bank Natl. Trust Co. v Umeh (2016 NY Slip Op 08305)

Deutsche Bank Natl. Trust Co. v Umeh

2016 NY Slip Op 08305

Decided on December 8, 2016

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2016

Mazzarelli, J.P., Friedman, Acosta, Andrias, Moskowitz, JJ.

2428 381221/13

[*1]Deutsche Bank National Trust Company, etc., Plaintiff-Respondent,

v

Micah Umeh, Defendant-Appellant, Mortgage Electronic Registration Systems, Inc., etc., et al., Defendants.

Micah Umeh, appellant pro se.

Leopold & Associates, PLLC, Armonk (Richard P. O'Brien of counsel), for respondent.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about September 22, 2015, which denied the motion of defendant Micah Umeh to dismiss the complaint as against him, unanimously affirmed, without costs.

Once defendant placed plaintiff's standing into issue, it was plaintiff's burden to establish its standing by showing physical possession of the note prior to commencement of the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]). Here, plaintiff attached the note, which was annexed to the certificate of merit, to its complaint. While the averments in the certificate of merit were insufficient to establish delivery and possession, the fact that the note was in plaintiff's possession at the time of commencement, as evidenced by its attachment to the complaint, was sufficient

(see Nationstar Mtge., LLC v Catizone, 127 AD3d 1151 [2nd Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2016

CLERK