| Citigroup v Kopelowitz |
| 2017 NY Slip Op 01331 [147 AD3d 1014] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Citigroup, as Trustee for WAMU 2003-S11,Respondent, v Tzivya C. Kopelowitz, Also Known as Tzivya C. Lieber, et al.,Appellants, et al., Defendants. |
Lee M. Nigen, Brooklyn, NY (Ellery Ireland of counsel), for appellants.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Lijue T. Philip and AndrewMorganstern of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Tzivya C. Kopelowitz, also known asTzivya C. Lieber, and David Kopelowitz appeal, as limited by their brief, from so much of anorder of the Supreme Court, Queens County (Nahman, J.), entered May 13, 2015, as granted thatbranch of the plaintiff's motion which was for summary judgment on the complaint insofar asasserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
"To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must producethe mortgage, the unpaid note, and evidence of default" (JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 644[2016]; see HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206, 1207 [2015]). There is no requirement that a plaintiff in aforeclosure action rely on any particular set of business records to establish a prima facie case, solong as the plaintiff satisfies the admissibility requirements of CPLR 4518 (a), and the recordsthemselves actually evince the facts for which they are relied upon (accord North Am. Sav. Bank, FSB vEsposito-Como, 141 AD3d 706 [2016]; Pennymac Holdings, LLC v Tomanelli, 139 AD3d 688 [2016]; HSBC Bank USA, N.A. v Spitzer, 131AD3d 1206 [2015]).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law byproducing the note and mortgage, and the affidavit of Phonesay Say, a vice president of theplaintiff's loan servicer, attesting to the appellants' default based upon his review of paymentrecords kept in the regular course of the loan servicer's business (see Emigrant Bank v Marando, 143AD3d 856 [2016]). Contrary to the appellants' contentions, Say's affidavit was sufficientproof of their default because the business records he relied upon satisfied the admissibilityrequirements of CPLR 4518 (a), and the records themselves actually evinced the facts underlyingthe appellants' default (see North Am.Sav. Bank, FSB v Esposito-Como, 141 AD3d 706 [2016]; Pennymac Holdings, LLC v Tomanelli,139 AD3d 688 [2016]; HSBC BankUSA, N.A. v Spitzer, 131 AD3d 1206 [2015]). In opposition, the appellants failed toraise a triable issue of fact (see TDBank, N.A. v Mandia, 133 AD3d 590, 591 [2015]).
Contrary to the appellants' contention, by failing to raise the issue of the plaintiff's standingto commence this action in their answer (see CPLR 3018 [b]), or make a pre-answermotion [*2]to dismiss based on lack of standing (seeCPLR 3211 [e]), they waived the issue (see JP Morgan Chase Bank, N.A. v Butler, 129 AD3d 777, 780[2015]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 244-245 [2007]). Under such circumstances, the plaintiffwas not required to establish its standing in order to demonstrate its prima facie entitlement tojudgment as a matter of law (seeDeutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 567 [2014]).
The appellants' remaining contentions are improperly raised for the first time on appeal (see generally PHH Mtge. Corp. vCelestin, 130 AD3d 703, 704 [2015]; Federal Natl. Mtge. Assn. v Cappelli, 120 AD3d 621, 622[2014]).
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for summary judgment on the complaint insofar as asserted against the appellants. Mastro,J.P., Austin, Miller and Maltese, JJ., concur. [Prior Case History: 47 Misc 3d 1215(A), 2015NY Slip Op 50634(U).]