| Bank of N.Y. v Willis |
| 2017 NY Slip Op 03468 [150 AD3d 652] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| Bank of New York, as Trustee for the Benefit of the CertificateHolders, CWABS Inc., Asset-Backed Certificates Series 2007-5ES, Series 2007-5 400 CountryWay, Simi Valley, CA 93065, Respondent, v Juliet Willis et al., Appellants, et al.,Defendants. |
C. Steve Okenwa, P.C., New York, NY, for appellants.
Davidson Fink LLP, Rochester, NY (William A. Santmyer and Larry T. Powell of counsel),for respondent.
In an action to foreclose a mortgage, the defendants Juliet Willis and Premier Real EstateCo., LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Partnow, J.), dated February 25, 2014, as granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against thedefendant Juliet Willis, leave to enter a default judgment against the defendant Premier RealEstate Co., LLC, and an order of reference.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against the defendant Juliet Willis, leave to enter a default judgment against thedefendant Premier Real Estate Co., LLC, and an order of reference are denied.
Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue bythe defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Citimortgage, Inc. v Klein, 140AD3d 913, 914 [2016]; Bank ofN.Y. Mellon v Visconti, 136 AD3d 950, 950 [2016]). A plaintiff has standing in amortgage foreclosure action where it is the holder or assignee of the underlying note at the timethe action was commenced (see AuroraLoan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]; Wells Fargo Bank, N.A. v Marchione,69 AD3d 204, 207-209 [2009]; U.S.Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]). "Either a written assignment of theunderlying note or the physical delivery of the note prior to the commencement of the foreclosureaction is sufficient to transfer the obligation, and the mortgage passes with the debt as aninseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see AuroraLoan Servs., LLC v Taylor, 25 NY3d at 361-362).
Here, the plaintiff attempted to establish its standing by submitting the affidavit of KellyThompson, an Assistant V.P., Operations Team Manager, at Bank of America, N.A. (hereinafterBANA), the servicer of the defendant Juliet Willis's loan on behalf of the plaintiff. Thompsonaverred, in relevant part, that her affidavit was based upon her review of BANA's businessrecords, and that upon review of such records, the note was physically transferred to the plaintiff"in or about March 2007." The plaintiff failed to demonstrate that the records relied upon byThompson were admissible under the business records exception to the hearsay rule (seeCPLR 4518 [a]) because Thompson, an employee of BANA, did not attest that she waspersonally familiar [*2]with the plaintiff's recordkeeping practicesand procedures (see Arch Bay Holdings,LLC v Albanese, 146 AD3d 849 [2017]; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685[2016]; Aurora Loan Servs., LLC vMercius, 138 AD3d 650, 652 [2016]).
Because the plaintiff failed to establish, prima facie, its entitlement to judgment as a matterof law on the issue of standing, we need not consider the sufficiency of Willis's opposition papers(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The Supreme Court erred in granting that branch of the plaintiff's motion which was forleave to enter a default judgment against the defendant Premier Real Estate Co., LLC (hereinafterPremier). To obtain a default judgment against a corporation which has been served with processpursuant to Business Corporation Law § 306, a plaintiff must mail an additionalcopy of the summons and complaint on the corporation "at its last known address at least twentydays before the entry of judgment" (CPLR 3215 [g] [4] [i]). Here, the plaintiff's process server'saffidavit of service indicated that the additional mailing pursuant to CPLR 3215 (g) (4) (i) wasmade to the wrong address, and, therefore, was not sufficient to show compliance with CPLR3215 (g) (4) (i) (see Bunch v DollarBudget, Inc., 12 AD3d 391, 391-392 [2004]; Schilling v Maren Enters., 302AD2d 375, 376 [2003]; Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d919, 920 [2000]; Rafa Enters. v Pigand Mgt. Corp., 184 AD2d 329 [1992]).
The parties' remaining contentions are either without merit, improperly raised for the firsttime on appeal, or academic in light of our determination. Leventhal, J.P., Cohen, LaSalle andBarros, JJ., concur.