| HSBC Bank USA, N.A. v Armijos |
| 2017 NY Slip Op 05071 [151 AD3d 943] |
| June 21, 2017 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association, as Trustee forDeutsche Alt-A Securities Mortgage Loan Trust Series 2006-AR5, Respondent, v MarcoH. Armijos, Appellant, et al., Defendants. |
R. David Marquez, P.C., Mineola, NY, for appellant.
Hogan Lovells US LLP, New York, NY (David Dunn and Courtney Colligan of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Marco H. Armijos appeals, as limited byhis brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), enteredMay 14, 2015, as granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against him and dismissing his affirmativedefenses and counterclaims, and for an order of reference.
Ordered that the order is affirmed insofar as appealed from, with costs.
To establish prima facie entitlement to judgment as a matter of law in an action to foreclose amortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725, 726 [2017]; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002[2015]; Plaza Equities, LLC vLamberti, 118 AD3d 688, 689 [2014]). However, where, as here, the issue of standing israised by a defendant, a plaintiff must also establish its standing as part of its prima facie case(see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726; Security Lending, Ltd. v New RealtyCorp., 142 AD3d 986, 987 [2016]; LGF Holdings, LLC v Skydel, 139 AD3d 814 [2016]). A plaintiffestablishes its standing in a mortgage foreclosure action by demonstrating that, when the actionwas commenced, it was either the holder of, or the assignee of, the underlying note (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361-362 [2015]; Security Lending, Ltd. v New Realty Corp., 142AD3d at 987; LGF Holdings, LLC v Skydel, 139 AD3d at 814; Wells Fargo Bank, N.A. v Rooney, 132AD3d 980, 981 [2015]). "Either a written assignment of the underlying note or the physicaldelivery of the note prior to the commencement of the foreclosure action is sufficient to transferthe obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]; see Security Lending, Ltd. v New Realty Corp., 142 AD3d at987; LGF Holdings, LLC v Skydel, 139 AD3d at 814).
Here, in support of its motion, inter alia, for summary judgment on the complaint, theplaintiff produced the mortgage, the unpaid note, and evidence of default. The plaintiff alsoestablished that it had standing to commence this action by submitting the affidavit of a vicepresident of the plaintiff's loan servicer, which established that the plaintiff had physicalpossession of the note at the time it commenced this action (see Aurora Loan Servs., LLC vTaylor, 25 NY3d [*2]at 361-362; Security Lending, Ltd. vNew Realty Corp., 142 AD3d at 987).
In opposition, the appellant failed to raise a triable issue of fact. "[A] grant of summaryjudgment is not premature merely because discovery has not been completed" (Lamore v Panapoulos, 121 AD3d863, 864 [2014]; see Chemical Bank v PIC Motors Corp., 58 NY2d 1023, 1026[1983]). Here, the appellant failed to establish what additional information he hoped to gleanfrom the entire mortgage file in its original form that could not be gleaned from the original noteand mortgage and the portions of the mortgage file that the plaintiff had provided (seeCPLR 3212 [f]; Reale vTsoukas, 146 AD3d 833, 835-836 [2017]; Joon Mgt. One Corp. v Town of Ramapo, 142 AD3d 587, 589[2016]; Vikram Constr., Inc. v EverestNatl. Ins. Co., 139 AD3d 720, 721 [2016]). "The mere hope or speculation that evidencesufficient to defeat a motion for summary judgment may be uncovered during the discoveryprocess is insufficient to deny the motion" (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013] [internalquotation marks omitted]; see Chemical Bank v PIC Motors Corp., 58 NY2d at 1026;Reale v Tsoukas, 146 AD3d at 835-836; Rungoo v Leary, 110 AD3d 781, 783 [2013]; Anzel v Pistorino, 105 AD3d 784,786 [2013]). Moreover, the appellant's bald assertion of forgery in his affidavit in opposition, inthe absence of factual assertions to support such a claim, was inadequate to raise a triable issue offact (see Banco Popular N. Am. vVictory Taxi Mgt., 1 NY3d 381, 384 [2004]; HSBC Bank, USA v Hagerman, 130 AD3d 683, 684 [2015]; Beitner v Becker, 34 AD3d 406,408 [2006]).
The appellant's remaining contentions are without merit.
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 appellant anddismissing his affirmative defenses and counterclaims, and for an order of reference. Mastro,J.P., Dillon, Roman and Brathwaite Nelson, JJ., concur.