| Aurora Loans Servs., LLC v Mandel |
| 2017 NY Slip Op 02009 [148 AD3d 965] |
| March 22, 2017 |
| Appellate Division, Second Department |
[*1](March 22, 2017)
| Aurora Loans Services, LLC, Respondent, v Neal W.Mandel, Appellant, et al., Defendants. |
Amed Marzano & Sediva, PLLC, New York, NY (Naved Amed of counsel), forappellant.
Sandelands Eyet, LLP, New York, NY (Jessica A. Prentice and Geoffrey C. Jacobson ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Neal W. Mandel appeals, as limited byhis notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County(Pitts, J.), dated March 6, 2014, as granted those branches of the plaintiff's motion which werefor summary judgment on the complaint insofar as asserted against him, for an order of reference,and to amend the caption to substitute Nationstar Mortgage, LLC, as the plaintiff, and denied hiscross motion for summary judgment dismissing the complaint insofar as asserted againsthim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage and subsequently moved, interalia, for summary judgment on the complaint insofar as asserted against the defendant Neal W.Mandel (hereinafter the defendant), for an order of reference, and to amend the caption tosubstitute Nationstar Mortgage, LLC (hereinafter Nationstar), as the plaintiff. The defendant,inter alia, cross-moved for summary judgment dismissing the complaint insofar as assertedagainst him on the ground of lack of standing, which had been raised in his answer as anaffirmative defense. The Supreme Court, among other things, granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againstthe defendant, for an order of reference, and to amend the caption to substitute Nationstar as theplaintiff. The court also denied the defendant's cross motion for summary judgment. Thedefendant appeals.
" 'Generally, in moving for summary judgment in an action to foreclose a mortgage,a plaintiff establishes its prima facie case through the production of the mortgage, the unpaidnote, and evidence of default' " (North Am. Sav. Bank, FSB v Esposito-Como, 141 AD3d 706, 708[2016], quoting Plaza Equities, LLC vLamberti, 118 AD3d 688, 689 [2014]). "Additionally, where, as here, the plaintiff'sstanding is placed in issue by a defendant, the plaintiff must prove its standing as part of its primafacie showing" (Flagstar Bank, FSB vMendoza, 139 AD3d 898, 899 [2016]). "A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that it is either the holder or assignee of theunderlying note at the time the action is commenced" (Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899[2016]; see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 360-362 [2015]; Bank of N.Y. v Silverberg, 86 AD3d 274 [2011]).
Here, the plaintiff established, prima facie, that it had standing to commence this [*2]foreclosure action. The plaintiff submitted evidence, including theaffidavit of Laura McCann, a vice president of the plaintiff's parent company and a former vicepresident of the plaintiff, which sufficiently demonstrated that the plaintiff had physicalpossession of the subject note at the time of the commencement of this action (see AuroraLoan Servs., LLC v Taylor, 25 NY3d at 360-362; Wells Fargo Bank, N.A. vGallagher, 137 AD3d at 899; WellsFargo Bank, N.A. v Arias, 121 AD3d 973 [2014]). Moreover, the mortgage passes withthe note as an incident thereto, and possession or assignment of the mortgage is not dispositive ofthe plaintiff's standing.
Additionally, the plaintiff established its prima facie entitlement to judgment as a matter oflaw by producing the mortgage, the unpaid note, and evidence of the defendant's default (seeWells Fargo Bank, N.A. v Gallagher, 137 AD3d at 899).
In opposition, the defendant failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against the defendant andfor an order of reference. The court also properly denied the defendant's cross motion forsummary judgment dismissing the complaint insofar as asserted against him, as the defendantfailed to make a prima facie showing that the plaintiff lacked standing (see Aurora Loan Servs., LLC vMercius, 138 AD3d 650, 652 [2016]).
Furthermore, the Supreme Court providently exercised its discretion in granting that branchof the plaintiff's motion which was to amend the caption to substitute Nationstar as the plaintiff(see CPLR 1018, 3025 [b];Washington Mut. Bank v Nussen, 138 AD3d 828, 830 [2016]; Brighton BK, LLC v Kurbatsky, 131AD3d 1000, 1001 [2015]). The plaintiff submitted evidence demonstrating that the subjectnote was in Nationstar's possession at the time of the plaintiff's motion, and that the mortgagewas assigned to Nationstar after the commencement of the action. The plaintiff, therefore,established that Nationstar is now the real plaintiff in interest (see Aurora Loan Servs., LLC v Lopa,130 AD3d 952, 952-953 [2015]). Rivera, J.P., Leventhal, Hall and Duffy, JJ., concur.