| U.S. Bank N.A. v Sabloff |
| 2017 NY Slip Op 06313 [153 AD3d 879] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee for the CSABMortgage Loan Trust 2006-2, Respondent, v Warren Sabloff, Appellant, et al.,Defendants. |
Mark D. Mermel, Lake Success, NY, for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F. Battistaand Barry Weiss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Warren Sabloff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April14, 2015, as granted that branch of the plaintiff's motion which was for summary judgment onthe complaint insofar as asserted against him, and denied his cross motion for summary judgmentdismissing the complaint insofar as asserted against him.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiff's motion which was for summary judgment on the complaint insofar asasserted against the defendant Warren Sabloff and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, with coststo the appellant, and a subsequent order of the same court entered August 16, 2016, isvacated.
In 2013, the plaintiff commenced this action to foreclose a mortgage given by the defendantsWarren Sabloff (hereinafter Sabloff) and Ellen Sabloff as security for a note executed by Sabloffin the sum of $1,500,000. In his answer, Sabloff asserted the affirmative defenses of, inter alia,lack of standing and failure to give notice of default as required by the terms of the mortgage.Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint,and Sabloff cross-moved for summary judgment dismissing the complaint insofar as assertedagainst him. The Supreme Court granted the plaintiff's motion and denied the cross motion, andSabloff appeals.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its prima facie case through the production of the mortgage, the unpaid note, andevidence of default" (Plaza Equities,LLC v Lamberti, 118 AD3d 688, 689 [2014]; see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684[2016]). Where standing is put into issue by a defendant, the plaintiff must prove its standing inorder to be entitled to relief (see AuroraLoan Servs., LLC v Taylor, 114 AD3d 627, 628 [2014], affd 25 NY3d 355 [2015]). Aplaintiff in a mortgage foreclosure action has standing where it is the holder of the underlyingnote at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25NY3d 355, 361 [2015]; U.S. Bank N.A.v Handler, 140 AD3d 948, 949 [2016]). Either a written assignment of the underlyingnote or the physical delivery of the note is sufficient to transfer the obligation, and the mortgagepasses with the debt as an inseparable incident (see US Bank, N.A. v Zwisler, 147 AD3d 804, 805 [2017]; U.S. Bank, N.A. v Collymore, 68AD3d 752, 754 [2009]).
Here, the plaintiff demonstrated, prima facie, that it was a holder of the note at the time theaction was commenced, as evidenced by its attachment of the note, endorsed in blank, to thesummons and complaint at the time the action was commenced (see U.S. Bank N.A. v Saravanan, 146AD3d 1010 [2017]; Deutsche BankNatl. Trust Co. v Logan, 146 AD3d 861 [2017]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866 [2016]). Inopposition, Sabloff failed to tender evidence sufficient to raise a triable issue of fact as to theplaintiff's standing.
Similarly, Sabloff failed to demonstrate his prima facie entitlement to judgment as a matterof law on that branch of his cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against him for lack of standing (see DLJ Mtge. Capital, Inc. v Pittman,150 AD3d 818 [2017]; Bank ofN.Y. Mellon v Green, 132 AD3d 706 [2015]).
However, that branch of the plaintiff's motion which was for summary judgment on thecomplaint insofar as asserted against Sabloff should have been denied, since the evidencesubmitted in support of the motion failed to establish, prima facie, that the required notice ofdefault was in fact mailed to Sabloff by first-class mail, or actually delivered to the designatedaddress if sent by other means, which was required by the terms of the mortgage as a conditionprecedent to foreclosure (see EmigrantBank v Myers, 147 AD3d 1027 [2017]; Citimortgage, Inc. v Espinal, 134 AD3d 876, 879 [2015]; GMAC Mtge., LLC v Bell, 128 AD3d772 [2015]; Wells Fargo Bank,N.A. v Eisler, 118 AD3d 982 [2014]; HSBC Mtge. Corp. [USA] v Gerber, 100 AD3d 966, 967 [2012]).The plaintiff's failure to make a prima facie showing in this regard required the denial of thatbranch of its motion, regardless of the sufficiency of Sabloff's opposition papers (see US Bank N.A. v Singh, 147 AD3d1007, 1008 [2017]; NationstarMtge., LLC v Dimura, 127 AD3d 1152, 1153 [2015]). Moreover, Sabloff was notentitled to summary judgment dismissing the complaint on the same ground, since he failed topresent sufficient evidence to demonstrate, prima facie, that the condition precedent was notfulfilled (see CPLR 3015 [a]). Mastro, J.P., Dillon, Cohen and Brathwaite Nelson, JJ.,concur.