| Bank of N.Y. Mellon v Cutler |
| 2017 NY Slip Op 07424 [154 AD3d 910] |
| October 25, 2017 |
| Appellate Division, Second Department |
[*1]
| Bank of New York Mellon, Formerly Known as Bank of NewYork, as Trustee for the Certificate Holders of CWABS, Inc., Asset Backed Certificates, Series2007-12, Respondent, v Gregg E. Cutler et al., Appellants, et al.,Defendants. |
R. David Marquez, P.C., Mineola, NY, for appellants.
Bryan Cave LLP, New York, NY (Suzanne M. Berger, Carolyn K. Brooks Rincon, andCourtney Peterson of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Gregg E. Cutler and Mirela S. Cutler,also known as Mirela Cutler, appeal (1) from a decision of the Supreme Court, Nassau County(Adams, J.), dated July 18, 2014, and (2), as limited by their brief, from so much of an order ofthe same court entered January 2, 2015, as, upon the decision, granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againstthem and for the appointment of a referee to facilitate the sale of the subject property, and deniedtheir cross motion to compel further discovery.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againstthe appellants and for the appointment of a referee to facilitate the sale of the subject property aredenied, and the matter is remitted to the Supreme Court, Nassau County, for a new determinationof the appellants' cross motion to compel further discovery; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The plaintiff commenced this mortgage foreclosure action following the default of thedefendants Gregg E. Cutler and Mirela S. Cutler, also known as Mirela Cutler (hereinaftertogether the defendants), on a note executed by them in the principal amount of $372,000 andissued in favor of Countrywide Home Loans, Inc., the plaintiff's predecessor in interest. Thedefendants asserted, inter alia, the defense of lack of standing in their answer. The partiesengaged in pretrial disclosure, and the plaintiff subsequently moved, among other things, forsummary judgment on the complaint insofar as asserted against the defendants and for theappointment of a referee to facilitate the sale of the property mortgaged by the defendants assecurity for the debt. The defendants [*2]opposed the motion,inter alia, on the ground that the plaintiff lacked standing to maintain the action, and cross-movedto compel further discovery. The Supreme Court granted those branches of the plaintiff's motionand, apparently in light of that determination, denied the defendants' cross motion. Thedefendants appeal.
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 Bank of N.Y. v Willis, 150 AD3d652, 652 [2017]; Citimortgage, Inc.v Klein, 140 AD3d 913, 914 [2016]; Bank of N.Y. Mellon v Visconti, 136 AD3d 950, 950 [2016]). Aplaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of theunderlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015];Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 207-209 [2009]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]). "Either awritten assignment of the underlying note or the physical delivery of the note prior to thecommencement of the foreclosure action is sufficient to transfer the obligation, and the mortgagepasses with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3dat 754; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).
Here, the plaintiff attempted to establish its standing by submitting the affidavit of KatherineCacho, a vice president at Bank of America, N.A., which serviced the defendants' loan on behalfof the plaintiff. Cacho averred, in relevant part, that her affidavit was based upon her review ofunspecified records indicating that the note was physically transferred to the plaintiff on August16, 2007. The plaintiff failed to demonstrate that the records relied upon by Cacho wereadmissible under the business records exception to the hearsay rule (see CPLR 4518 [a])because Cacho did not attest that she was personally familiar with the plaintiff's record-keepingpractices and procedures (see Bank of N.Y. v Willis, 150 AD3d at 652; Arch Bay Holdings, LLC v Albanese,146 AD3d 849 [2017]; DeutscheBank Natl. Trust Co. v Brewton, 142 AD3d 683, 685 [2016]; Aurora Loan Servs., LLC v Mercius,138 AD3d 650, 652 [2016]).
Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter oflaw on the issue of standing, we need not consider the sufficiency of the defendants' oppositionpapers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Inasmuch as the Supreme Court's denial of the defendants' cross motion to compel furtherdiscovery appears to have been premised on its granting of the plaintiff's motion for summaryjudgment, we remit the matter to that court for a new determination of the cross motion.
In view of the foregoing, we need not reach the parties' remaining contentions. Mastro, J.P.,Hall, Austin and Sgroi, JJ., concur.