| OneWest Bank, FSB v Berino |
| 2018 NY Slip Op 01318 [158 AD3d 811] |
| February 28, 2018 |
| Appellate Division, Second Department |
[*1]
| OneWest Bank, FSB, Respondent, v Kenneth Berino etal., Appellants, et al., Defendants. |
Jeffrey I. Klein, White Plains, NY, for appellants.
Ras Boriskin, LLC (Druckman Law Group PLLC, Westbury, NY [Lisa M. Browne and PaulBierman], of counsel), for respondent.
Appeals from a decision of the Supreme Court, Westchester County (Linda S. Jamieson, J.),dated May 27, 2016, and an order of that court, also dated May 27, 2016. The order, insofar asappealed from, upon the decision, granted those branches of the plaintiff's motion which were forsummary judgment on the complaint insofar as asserted against the defendants Kenneth Berinoand Eva Berino, to strike their answer, and for the appointment of a referee to compute theamount due under a note and mortgage, and, in effect, denied those defendants' cross motion forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as noappeal 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 modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment on the complaintinsofar as asserted against the defendants Kenneth Berino and Eva Berino, to strike their answer,and for the appointment of a referee to compute the amount due under the note and mortgage,and substituting therefor provisions denying those branches of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
In March 2003, the defendants Kenneth Berino and Eva Berino (hereinafter together theBerino defendants) borrowed the sum of $322,700 from IndyMac Bank, F.S.B. (hereinafterIndyMac). The loan was memorialized by a note and secured by a mortgage on certain realproperty in New Rochelle. The Berino defendants allegedly defaulted on the loan by failing tomake the payment due on June 1, 2010. Thereafter, the Federal Deposit Insurance Corporation(hereinafter the FDIC), as receiver for IndyMac Federal Bank, FSB, successor by merger toIndyMac, assigned the mortgage, together with the note, to OneWest Bank, FSB (hereinafterOneWest).
In February 2011, OneWest commenced an action to foreclose the mortgage against, [*2]among others, the Berino defendants. The Berino defendantsinterposed an answer, and moved, inter alia, for summary judgment dismissing the complaintinsofar as asserted against them for lack of standing. In an order dated September 4, 2012, theSupreme Court granted that branch of the Berino defendants' motion.
In June 2013, OneWest commenced this action to foreclose the same mortgage. After theBerino defendants joined issue, OneWest moved, inter alia, for summary judgment on thecomplaint insofar as asserted against them, to strike their answer, and for the appointment of areferee to compute the amount due. The Berino defendants opposed the motion, and cross-movedfor summary judgment dismissing the complaint insofar as asserted against them, inter alia, forlack of standing. The Supreme Court granted those branches of OneWest's motion and denied theBerino defendants' cross motion. The Berino defendants appeal.
"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]). Additionally, "[w]here, as here, standingis put into issue by a defendant, the plaintiff must prove its standing in order to be entitled torelief" (Aurora Loan Servs., LLC vTaylor, 114 AD3d 627, 628 [2014] [internal quotation marks omitted], affd 25NY3d 355 [2015]). A plaintiff in a mortgage foreclosure action has standing where it is theholder or assignee of the underlying note at the time the action is commenced (see AuroraLoan Servs., LLC v Taylor, 25 NY3d at 361; U.S. Bank N.A. v Handler, 140 AD3d 948, 949 [2016]). "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 AD3d 752, 754 [2009]).
Here, OneWest failed to meet its prima facie burden of establishing that it had standing asthe holder or assignee of the note at the time it commenced the action (see Wells Fargo Bank, N.A. v Talley,153 AD3d 583, 584 [2017]; ArchBay Holdings, LLC v Albanese, 146 AD3d 849, 852 [2017]). In support of its motion,OneWest submitted the affidavit of Jillian Thrasher, an employee of its loan servicer, whoaverred that OneWest was the holder of the note, which is endorsed in blank, and assignee of themortgage at the time the action was commenced. However, OneWest failed to demonstrate theadmissibility of the records that Thrasher relied upon under the business records exception to thehearsay rule (see CPLR 4518 [a]), since she did not attest that she was personally familiarwith OneWest's record-keeping practices and procedures (see Arch Bay Holdings, LLC vAlbanese, 146 AD3d at 853; AuroraLoan Servs., LLC v Baritz, 144 AD3d 618, 620 [2016]; Deutsche Bank Natl. Trust Co. vBrewton, 142 AD3d 683, 685 [2016]; U.S. Bank N.A. v Handler, 140 AD3d at949; Aurora Loan Servs., LLC vMercius, 138 AD3d 650, 652 [2016]). Insofar as the Supreme Court reached itsdetermination that OneWest had standing by, sua sponte, "independently tak[ing] judicial noticeof the FDIC website," this Court has repeatedly cautioned against such independent Internetinvestigations, especially when conducted without providing notice or an opportunity for theparties to be heard (see First UnitedMtge. Banking Corp. v Lawani, 147 AD3d 912, 913 [2017]; HSBC Bank USA, N.A. v Taher, 104AD3d 815, 818 [2013]). Since OneWest failed to meet its prima facie burden, the courtshould have denied the subject branches of its motion without regard to the sufficiency of theBerino defendants' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).
Nevertheless, the Supreme Court properly denied the Berino defendants' cross motion forsummary judgment dismissing the complaint insofar as asserted against them for lack ofstanding, as they failed to make a prima facie showing that OneWest lacked standing (see Filan v Dellaria, 144 AD3d967, 975 [2016]; Deutsche BankTrust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]).
The Berino defendants' remaining contentions are without merit. Rivera, J.P., Cohen,Hinds-Radix and Brathwaite Nelson, JJ., concur.