| Hudson City Sav. Bank v Genuth |
| 2017 NY Slip Op 01540 [148 AD3d 687] |
| March 1, 2017 |
| Appellate Division, Second Department |
[*1]
| Hudson City Savings Bank, Respondent, v IsaacGenuth et al., Appellants, et al., Defendants. |
Mitchell L. Perry, Briarcliff Manor, NY (Joseph E. Ruyack III of counsel), forappellants.
Cohn & Roth, Mineola, NY (Edward C. Klein of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Isaac Genuth, Sarah Genuth, also knownas Sara Genuth, 36 Lyncrest Drive Trust, Isaac Genuth and Sarah Genuth, as Trustees, appeal (1)from an order of the Supreme Court, Rockland County (Loehr, J.), dated March 26, 2015, and(2), as limited by their brief, from so much of an order of the same court entered March 31, 2015,as granted those branches of the plaintiff's motion which were for summary judgment on thecomplaint, to strike their affirmative defenses, and for an order of reference.
Ordered that the appeal from the order dated March 26, 2015, is dismissed, as that order wassuperseded by the order entered March 31, 2015; and it is further,
Ordered that the order entered March 31, 2015, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
On November 21, 2005, the defendant homeowners, Isaac Genuth and Sarah Genuth, alsoknown as Sara Genuth (hereinafter together the homeowners), executed and delivered a note sumof $250,000 to Citibank, NA, secured by a mortgage on their property in Monsey (hereinafter thepremises). In early June 2009, the Citibank mortgage and note were assigned to the plaintiff.Shortly thereafter, on June 18, 2009, Isaac Genuth executed and delivered a note in the principalsum of $196,464.19 to the plaintiff, secured by a second mortgage on the premises given by thehomeowners. On the same date, the parties entered into an agreement whereby Citibank's and theplaintiff's mortgages and notes were consolidated into a single consolidated mortgage and note.On July 1, 2011, the homeowners defaulted in making the payments under the consolidatedmortgage and note. On April 19, 2012, the homeowners transferred title to the premises to thedefendant 36 Lyncrest Drive Trust, Isaac Genuth and Sarah Genuth, as Trustees (hereinafter theTrust).
By summons and verified complaint filed on October 18, 2013, the plaintiff [*2]commenced this action to foreclose the consolidated mortgage. Aspertinent to this appeal, the homeowners and the Trust answered and interposed the affirmativedefense that the plaintiff lacked standing. The plaintiff moved for summary judgment on thecomplaint, to strike the affirmative defenses of the homeowners and the Trust, and for an order ofreference. The Supreme Court, inter alia, granted those branches of the plaintiff's motion.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its prima facie case through the production of the mortgage, the unpaid note, andevidence of default" (Deutsche BankNatl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [2015] [internal quotation marksomitted]; see HSBC Bank, USA vHagerman, 130 AD3d 683, 683-684 [2015]; Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689 [2014]).However, where, as here, a plaintiff's standing to commence a foreclosure action is placed inissue by the defendant, it is incumbent upon the plaintiff to prove its standing as part of its primafacie showing (see Deutsche Bank Natl.Trust Co. v Cunningham, 142 AD3d 634, 635 [2016]; Deutsche Bank Natl. Trust Co. vBrewton, 142 AD3d 683, 684 [2016]; Generation Mtge. Co. v Medina, 138 AD3d 688 [2016]; Wells Fargo Bank, N.A. v Arias, 121AD3d 973, 973-974 [2014]). A plaintiff establishes its standing in a mortgage foreclosureaction by demonstrating that, when the action was commenced, it was either the holder orassignee of the underlying note at the time the action was commenced (see U.S. Bank, N.A. v Noble, 144AD3d 786 [2016]; U.S. Bank, N.A.v Collymore, 68 AD3d 752, 753-754 [2009]).
Here, the plaintiff established its standing by demonstrating that it was the holder of theconsolidated mortgage and note at the time the action was commenced. Further, the plaintiffestablished its prima facie entitlement to judgment as a matter of law by producing theconsolidated mortgage, the consolidated note, and evidence of the default (see Emigrant Mtge. Co., Inc. v Persad,117 AD3d 676, 677 [2014]; Generation Mtge. Co. v Medina, 138 AD3d 688, 689 [2016]; Wachovia Mtge. Corp. v Lopa, 129AD3d 830, 830-831 [2015]). In opposition, the homeowners and the Trust failed to raise atriable issue of fact.
Furthermore, contrary to the remaining contention of the homeowners and the Trust, on thisrecord, the totality of the circumstances supports the Supreme Court's determination that theplaintiff's actions constituted a meaningful effort at reaching a mutually agreeable resolution(see CPLR 3408 [f]; Wells FargoBank, N.A. v Miller, 136 AD3d 1024, 1025 [2016]).
Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, forsummary judgment on the complaint. Rivera, J.P., Cohen, Miller and Brathwaite Nelson, JJ.,concur.