| Deutsche Bank Natl. Trust Co. v Iarrobino |
| 2018 NY Slip Op 01451 [159 AD3d 670] |
| March 7, 2018 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee forCarrington Mortgage Loan Trust, Series 2005-FRE1 Asset-Backed Pass-Through Certificates,Respondent, v Anthony Iarrobino et al., Appellants, et al.,Defendants. |
John Z. Marangos, Staten Island, NY, for appellants.
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Ellis M. Oster and Jason P. Dionisio ofcounsel), for respondent.
Appeals from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.),dated January 6, 2016, and a judgment of foreclosure and sale of that court dated March 6, 2017.The order, upon a decision of that court (Edward V. Corrigan, R.) dated June 1, 2015, made aftera hearing, inter alia, granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the defendants Anthony Iarrobino andAntonina Iarrobino, also known as Anthonina Iarrobino, and for an order of reference, and deniedthe cross motion of the defendants Anthony Iarrobino and Antonina Iarrobino, also known asAnthonina Iarrobino, pursuant to CPLR 3211 (a) (3) and CPLR 3212 to dismiss the complaintinsofar as asserted against them for lack of standing. The judgment, upon the order, inter alia,directed the sale of the subject property.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment of foreclosure and sale is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of the judgment of foreclosure and sale in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and have been considered on the appeal from the judgment of foreclosure and sale(see CPLR 5501 [a] [1]).
The plaintiff commenced this action against Anthony Iarrobino and Antonina Iarrobino, alsoknown as Anthonina Iarrobino (hereinafter together the Iarrobino defendants), among others, toforeclose a mortgage secured by certain real property located in Staten Island. In September2013, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as assertedagainst the Iarrobino defendants, and for an order of reference. The Iarrobino defendants [*2]opposed the motion and cross-moved pursuant to CPLR 3211 (a)(3) and CPLR 3212 to dismiss the complaint insofar as asserted against them for lack ofstanding. The Supreme Court referred the matter to a referee to hear and determine the issue ofstanding. Thereafter, upon the referee's decision dated June 1, 2015, made after a hearing, thecourt, inter alia, granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the Iarrobino defendants and for an orderof reference, and denied the Iarrobino defendants' cross motion. By judgment of foreclosure andsale dated March 6, 2017, in favor of the plaintiff, the court, inter alia, directed the sale of theproperty. The Iarrobino defendants appeal.
Contrary to the Iarrobino defendants' contention, the Supreme Court properly granted thosebranches of the plaintiff's motion which were for summary judgment on the complaint insofar asasserted against them and for an order of reference. "Generally, in moving for summary judgmentin an action to foreclose a mortgage, a plaintiff establishes its prima facie case through theproduction of the mortgage, the unpaid note, and evidence of default" (Plaza Equities, LLC v Lamberti, 118AD3d 688, 689 [2014]; seeDeutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684 [2016]; Deutsche Bank Natl. Trust Co. vAbdan, 131 AD3d 1001, 1002 [2015]). Additionally, where, as here, standing is put intoissue by a defendant, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Trust Co. Ams. vGarrison, 147 AD3d 725 [2017]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974 [2014]).A plaintiff in a mortgage foreclosure action has standing 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];U.S. Bank N.A. v Handler, 140AD3d 948, 949 [2016]). Either a written assignment of the underlying note or the physicaldelivery of the note, properly endorsed, is sufficient to transfer the obligation, and the mortgagepasses with the debt as an inseparable incident (see Bank of Am., N.A. v Martinez, 153 AD3d 1219 [2017];Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 685).
Here, the plaintiff established that it had standing by demonstrating that it had physicalpossession of the original note, properly endorsed, at the time the action was commenced (see Bank of Am., N.A. v Martinez, 153AD3d 1219 [2017]; Bank of Am.,N.A. v Barton, 149 AD3d 676, 678 [2017]; U.S. Bank N.A. v Cruz, 147 AD3d 1103, 1104 [2017]; PennyMac Corp. v Chavez, 144 AD3d1006, 1007 [2016]). Additionally, the plaintiff established its prima facie entitlement tojudgment as a matter of law by submitting the mortgage, the note, and the affidavit of a vicepresident of its loan servicer, attesting to the Iarrobino defendants' default in payment, and inresponse, the Iarrobino defendants failed to raise a triable issue of fact (see Bank of Am.,N.A. v Barton, 149 AD3d at 678).
The Iarrobino defendants' remaining contentions either are without merit or need not bereached in light of our determination. Balkin, J.P., Leventhal, Chambers and Miller, JJ.,concur.