| Central Mtge. Co. v Jahnsen |
| 2017 NY Slip Op 03474 [150 AD3d 661] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| Central Mortgage Company, Respondent, v SusanJahnsen, Also Known as Susan E. Jahnsen and Another, et al., Appellants, et al.,Defendants. |
Charles H. Wallshein, Melville, NY, for appellants.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Kevin M. Butlerof counsel), for respondent.
In an action to foreclose a mortgage, the defendants Susan Jahnsen, also known as Susan E.Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as SusanGentile, and Antonio J. Ferrara appeal (1), as limited by their brief, from so much of an order ofthe Supreme Court, Suffolk County (Tarantino, Jr., J.), dated September 3, 2014, as granted thatbranch of the plaintiff's motion which was for summary judgment on the complaint insofar asasserted against them, and denied that branch of their cross motion which was for furtherdiscovery pursuant to CPLR 3212 (f), and (2) from a judgment of foreclosure and sale of thesame court entered September 12, 2016, which, upon the order, is in favor of the plaintiff andagainst them, among other things, directing the sale of the subject premises.
Ordered that the appeals by the defendant Antonio J. Ferrara are dismissed as abandoned;and it is further,
Ordered that the appeal by the defendant Susan Jahnsen, also known as Susan E. Jahnsen,also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile, fromthe order is dismissed; and it is further,
Ordered that the judgment of foreclosure and sale is affirmed on the appeal by the defendantSusan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known asSusan Gulotta, also known as Susan Gentile; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeals by the defendant Antonio J. Ferrara must be dismissed as abandoned, as the briefsubmitted by the appellants does not request reversal of any portion of the order or judgment offoreclosure and sale with respect to him. The appeal from the order by the defendant SusanJahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan[*2]Gulotta, also known as Susan Gentile (hereinafter theappellant), must be dismissed because the right of direct appeal therefrom terminated with theentry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment of foreclosure and sale (see CPLR5501 [a] [1]; Matter of Aho, 39 NY2d at 248).
On March 17, 2005, the appellant executed an adjustable rate note promising to repayDowney Savings and Loan Association, F.A. (hereinafter the original lender) the principal sumof $337,500. The loan was secured by a duly recorded mortgage on a residential property inCenter Moriches. The note was later transferred to the plaintiff by physical delivery. Theappellant defaulted on the loan by failing to make her monthly mortgage payment that becamedue on September 1, 2009, and each month thereafter. The plaintiff sent the appellant notice ofher default, but she did not cure the default.
The plaintiff commenced this foreclosure action in June 2011, and the appellant filed ananswer. The plaintiff moved, inter alia, for summary judgment on the complaint, but withdrewthe motion after the appellant filed for bankruptcy and an automatic stay of the action went intoeffect. After the stay was lifted in December 2012, the plaintiff re-filed its motion. The appellantcross-moved, inter alia, for additional discovery pursuant to CPLR 3212 (f). In an order datedSeptember 3, 2014, the Supreme Court awarded the plaintiff summary judgment on thecomplaint, and denied the cross motion. A judgment of foreclosure and sale was entered upon theorder on September 12, 2016.
The primary issue presented on this appeal is whether the plaintiff established standing toforeclose the mortgage on the appellant's property. Where, as here, standing is put into issue bythe defendant, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. vBrewton, 142 AD3d 683, 684 [2016]; Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59[2015]; Nationstar Mtge., LLC vCatizone, 127 AD3d 1151, 1152 [2015]). A plaintiff establishes its standing in amortgage foreclosure action by demonstrating that it was the holder or assignee of the underlyingnote at the time the action was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362[2015]; HSBC Bank USA, N.A. vSpitzer, 131 AD3d 1206, 1207 [2015]). "Either a written assignment of the underlyingnote or the physical delivery of the note prior to the commencement of the foreclosure action issufficient to transfer the obligation, and the mortgage passes with the debt as an inseparableincident" (U.S. Bank, N.A. vCollymore, 68 AD3d 752, 754 [2009]; see Aurora Loan Servs., LLC v Taylor,25 NY3d at 361-362; Federal Natl.Mtge. Assn. v Yakaputz II, Inc., 141 AD3d 506, 507 [2016]; Citimortgage, Inc. v Klein, 140 AD3d913, 914 [2016]). Here, the plaintiff relies upon evidence of physical delivery rather than awritten assignment.
In support of that branch of its motion which was for summary judgment on the complaint,the plaintiff submitted the summons and complaint, the note and mortgage, proof of theappellant's default, and an affidavit of its vice president. The vice president averred that theplaintiff "had physical possession of the Note prior to the commencement of this action," but hedid not set forth the specific date that the plaintiff obtained the note or the date that the actionwas commenced (cf. Deutsche BankNatl. Trust Co. v Idarecis, 133 AD3d 702, 703 [2015]; Flagstar Bank, FSB v Anderson, 129AD3d 665, 665-666 [2015]; WellsFargo Bank, NA v Burke, 125 AD3d 765, 766 [2015]). However, the summonsdemonstrated that the action was commenced on June 13, 2011.
In opposition to the plaintiff's motion, the appellant raised various arguments challenging theplaintiff's standing, including that the plaintiff never had possession of the note.
In reply, the plaintiff submitted an affidavit from its assistant vice president (hereinafter thereply affidavit), which provided the specific date that the note was delivered to the plaintiff inorder to clarify that the note was indeed delivered prior to the commencement of the action. Aspart of her job responsibilities, the assistant vice president was familiar with the recordsmaintained by the plaintiff in connection with the subject loan and the procedures for creatingthese records in the regular course of the plaintiff's business. These records were made at or nearthe time of the occurrence of the matters recorded by persons with personal knowledge of theinformation, [*3]or based on information transmitted by personswith personal knowledge. After reviewing these records, the plaintiff's assistant vice presidentdetermined that the note was physically delivered, surrendered and conveyed to the plaintiff fromthe original lender on December 1, 2005. The assistant vice president further averred that, sincethat date, the plaintiff "has had actual physical possession of the Note." In its reply papers, theplaintiff also included a copy of the note with an endorsement in blank, signed by an employee ofthe original lender.
Based on these submissions, we agree with the Supreme Court's determination that theplaintiff established its prima facie entitlement to summary judgment, and the appellant failed toraise a triable issue of fact in opposition (see Aurora Loan Servs., LLC v Taylor, 25NY3d at 361-362; JPMorgan ChaseBank, N.A. v Weinberger, 142 AD3d 643, 645 [2016]; Wells Fargo Bank, N.A. v Gallagher,137 AD3d 898, 899-900 [2016]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1207 [2015];Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 207 [2009]).
Contrary to the appellant's contention, it was not error for the Supreme Court to consider thereply affidavit, which was submitted in reply to the appellant's opposition. A party moving forsummary judgment generally cannot meet its prima facie burden by submitting evidence for thefirst time in reply (see Citimortgage, Inc.v Espinal, 134 AD3d 876, 879 [2015]; Arriola v City of New York, 128 AD3d 747, 749 [2015]; 6014 Eleventh Ave. Realty, LLC v 6014AH, LLC, 114 AD3d 661, 662 [2014]; Tingling v C.I.N.H.R., Inc., 74 AD3d 954, 956 [2010]). However,there are exceptions to this general rule, including when the evidence is submitted in response toallegations raised for the first time in the opposition papers or when the other party is given anopportunity to respond to the reply papers (see Citimortgage, Inc. v Espinal, 134 AD3d 876, 879 [2015]; Pennachio v Costco Wholesale Corp.,119 AD3d 662 [2014]; David vChong Sun Lee, 106 AD3d 1044, 1045 [2013]). Further, "[t]he function of reply papersis to address arguments made in opposition to the position taken by the movant" (Matter of Harleysville Ins. Co. vRosario, 17 AD3d 677, 677-678 [2005] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 206 [2009]; Dannasch v Bifulco, 184 AD2d 415, 417[1992]).
Here, the Supreme Court properly considered the reply affidavit because the affidavit wasoffered in response to the appellant's allegation in opposition to the motion that the plaintiffnever had possession of the note, and merely clarified the plaintiff's initial submissions as to itspossession of the note at the time of commencement (see 71 Clinton St. Apts. LLC v 71 Clinton Inc., 114 AD3d 583, 584[2014]; Dias v City of New York,110 AD3d 577, 578 [2013]; Sanford v 27-29 W. 181st St. Assn., 300 AD2d 250, 251[2002]; Dannasch v Bifulco, 184 AD2d 415, 417 [1992]; cf. Aurora Loan Servs., LLC v Baritz,144 AD3d 618, 620 [2016]).
Further, the Supreme Court properly determined that there is no merit to the appellant'scontention that the plaintiff's motion should have been denied to afford her an opportunity toobtain discovery. The appellant failed to sufficiently demonstrate that she had made reasonableattempts to discover facts which would give rise to a triable issue or that further discovery mightlead to relevant evidence (see CPLR 3212 [f]; Swedbank, AB, N.Y. Branch v Hale Ave. Borrower, LLC, 89 AD3d922, 924 [2011]). Austin, J.P., Cohen, Maltese and Duffy, JJ., concur. [Prior CaseHistory: 2014 NY Slip Op 32447(U).]