| Citibank, N.A. v Gentile |
| 2017 NY Slip Op 09113 [156 AD3d 859] |
| December 27, 2017 |
| Appellate Division, Second Department |
[*1]
| Citibank, N.A., as Trustee for the Holders of Bear Stearns ARMTrust, Mortgage Pass-Through Certificates Series 2007-1, 3476 State View Boulevard, Ft. Mill,SC 29715, Respondent, v Patrick A. Gentile, Appellant, et al.,Defendants. |
Steven Cohn, P.C., Carle Place, NY (Mitchell R. Goldklang of counsel), for appellant.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Suzanne Novakof counsel), for respondent.
In an action to foreclose a mortgage, the defendant Patrick A. Gentile appeals from an orderof the Supreme Court, Nassau County (Adams, J.), entered June 9, 2015, which granted thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against him and for an order of reference.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage executed by the defendantsPatrick A. Gentile and Anna Krasovic. Gentile, the only defendant to interpose an answer,generally denied the allegations of the complaint, and did not assert any affirmative defenses ormake a pre-answer motion to dismiss the complaint on the ground of lack of standing. Theplaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted againstGentile, for an order of reference, for leave to enter a default judgment against the nonansweringdefendants, and for leave to amend the caption to substitute a successor-in-interest as theplaintiff. The Supreme Court granted those branches of the motion which were for summaryjudgment and for an order of reference. Gentile appeals.
Contrary to Gentile's contention, the Supreme Court properly granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as asserted againsthim and for an order of reference. " 'To establish a prima facie case in an action toforeclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence ofdefault' " (Citigroup vKopelowitz, 147 AD3d 1014, 1015 [2017], quoting JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 644[2016]; see HSBC Bank USA, N.A. vEspinal, 137 AD3d 1079 [2016]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1207 [2015]).Here, the plaintiff established its prima facie entitlement to judgment as a matter of law. Itproduced copies of the note and mortgage, an assignment of mortgage pursuant to which theoriginal lender assigned the mortgage and note to the plaintiff, and the affidavit of a vicepresident of the plaintiff's loan servicer, attesting to the mortgagors' default based upon hisreview of "the books and records maintained by Wells Fargo in the ordinary course of business inservicing this loan" and upon his "personal knowledge and review of those business records" (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355 [2015]).
[*2] In opposition, Gentilefailed to raise a triable issue of fact. Gentile waived the issue of the plaintiff's standing tocommence this action by failing to assert specific denials in his answer, to raise lack of standingas an affirmative defense in his answer, or to make a pre-answer motion to dismiss the complainton the ground of lack of standing (seeCastle Peak 2012-1 Loan Trust Mtge. Backed Notes, Series 2012-1 v Sottile, 147 AD3d720, 722 [2017]; Emigrant Bank vMarando, 143 AD3d 856, 857 [2016]; South Point, Inc. v Rana, 139 AD3d 935, 935-936 [2016]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 240 [2007]).
To the extent Gentile argues that the Supreme Court should have denied that branch of theplaintiff's motion which was to amend the caption to substitute a successor-in-interest as theplaintiff, that branch of the motion was not addressed or determined by the court in the orderappealed from. Therefore, it remains pending and undecided (see Federal Natl. Mtge. Assn. v Zapata, 143 AD3d 857, 859 [2016];Katz v Katz, 68 AD2d 536, 542-543 [1979]).
Gentile's remaining contention is not properly before this Court. Dillon, J.P., Leventhal,Hinds-Radix and LaSalle, JJ., concur.