| Citicorp Mtge. v Adams |
| 2017 NY Slip Op 06249 [153 AD3d 779] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| Citicorp Mortgage, Respondent, v Alan Adams et al.,Appellants, et al., Defendants. |
David A. Bythewood, Mineola, NY, for appellants.
David A. Gallo & Associates, LLP, Rego Park, NY (Renee J. Aragona and Robert Linkof counsel), for respondent.
In an action to foreclose a mortgage, the defendants Alan Adams and Zatrasha Adams appealfrom an order of the Supreme Court, Nassau County (Adams, J.), entered July 13, 2015, whichgranted the plaintiff's motion pursuant to CPLR 1018 to substitute nonparty Federal NationalMortgage Association as the plaintiff and to amend the caption accordingly, and denied theircross motion, in effect, for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting the plaintiff's motion pursuant to CPLR 1018 to substitutenonparty Federal National Mortgage Association as the plaintiff and to amend the captionaccordingly, and substituting therefor a provision denying the motion; as so modified, the order isaffirmed, with one bill of costs to the defendants Alan Adams and Zatrasha Adams payable bythe plaintiff.
In this mortgage foreclosure action, the plaintiff moved pursuant to CPLR 1018 to substitutenonparty Federal National Mortgage Association (hereinafter FNMA) as the plaintiff and toamend the caption accordingly. The defendants Alan Adams and Zatrasha Adams (hereinaftertogether the defendants) opposed the motion and cross-moved, in effect, for summary judgmentdismissing the complaint insofar as asserted against them on the ground of lack of standing. In anorder entered July 13, 2015, the Supreme Court granted the plaintiff's motion and denied thedefendants' cross motion. The defendants appeal.
CPLR 1018 provides that "[u]pon any transfer of interest, the action may be continued by oragainst the original parties unless the court directs the person to whom the interest is transferredto be substituted or joined in the action." "The determination to substitute or join a party pursuantto CPLR 1018 is within the discretion of the trial court" (NationsCredit Home Equity Servs. v Anderson, 16 AD3d 563, 564[2005]; see GRP Loan, LLC vTaylor, 95 AD3d 1172, 1174 [2012]). Here, the plaintiff failed to demonstrate that ittransferred its interest in the action to FNMA and, therefore, the Supreme Court improvidentlyexercised its discretion in granting the plaintiff's motion pursuant [*2]to CPLR 1018 (cf. Aurora Loans Servs., LLC v Mandel, 148 AD3d 965, 967[2017]; Brighton BK, LLC vKurbatsky, 131 AD3d 1000, 1001 [2015]; Aurora Loan Servs., LLC v Lopa, 130 AD3d 952, 952-953 [2015];Deutsche Bank Trust Co., Ams. vStathakis, 90 AD3d 983, 983 [2011]).
Nevertheless, the Supreme Court properly denied the defendants' cross motion, in effect, forsummary judgment dismissing the complaint insofar as asserted against them for lack ofstanding. "[T]he burden is on the moving defendant to establish, prima facie, the plaintiff's lackof standing, rather than on the plaintiff to affirmatively establish its standing in order for themotion to be denied" (Deutsche BankTrust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]; see Aurora Loan Servs., LLC vMercius, 138 AD3d 650, 652 [2016]). Here, the defendants failed to eliminate triableissues of fact regarding the plaintiff's standing as the holder or assignee of the note on the date ofcommencement of the action (see U.S.Bank N.A. v Handler, 140 AD3d 948, 950 [2016]). Since the defendants failed toestablish their prima facie entitlement to judgment as a matter of law, their cross motion wasproperly denied without regard to the sufficiency of any opposition papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Chambers, J.P., Miller, Duffy and Connolly, JJ.,concur.