| HSBC Bank USA, N.A. v Oscar |
| 2018 NY Slip Op 03667 [161 AD3d 1055] |
| May 23, 2018 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, National Association, as Trustee for OpteumMortgage Acceptance Corporation, Asset-Backed Pass-Through Certificates, Series 2005-4,Respondent, v Pierre Oscar, Appellant, et al., Defendants. |
Rubin & Licatesi, P.C., Garden City, NY (Richard H. Rubin and Amy J. Zamir ofcounsel), for appellant.
Shapiro DiCaro & Barak, LLC, Rochester, NY (Ellis M. Oster and Jason P. Dionisio ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Pierre Oscar appeals from an order of theSupreme Court, Nassau County (Thomas A. Adams, J.), entered November 20, 2015. The order,insofar as appealed from, granted that branch of the plaintiff's motion which was for summaryjudgment on the complaint insofar as asserted against the defendant Pierre Oscar and denied thatdefendant's cross motion for summary judgment dismissing the complaint insofar as assertedagainst him and pursuant to CPLR 3126 to dismiss the complaint insofar as asserted againsthim.
Ordered that the order is affirmed insofar as appealed from, with costs.
In August 2005, the defendant Pierre Oscar (hereinafter the defendant) executed a promissorynote in the amount of $236,000 in favor of Opteum Financial Services, LLC (hereinafterOpteum), which was secured by a mortgage on residential property in Westbury. The mortgagewas later assigned to the plaintiff. In September 2013, the plaintiff commenced this action toforeclose the mortgage against, among others, the defendant. In his answer, the defendantasserted 16 affirmative defenses, including that the plaintiff lacked standing to commence theaction and failed to comply with RPAPL 1304. Thereafter, the plaintiff moved, inter alia, forsummary judgment on the complaint insofar as asserted against the defendant. The defendantopposed the motion and cross-moved pursuant to CPLR 3212 and CPLR 3126 to dismiss thecomplaint insofar as asserted against him. By order entered November 20, 2015, the SupremeCourt, inter alia, granted that branch of the motion and denied the cross motion. The defendantappeals.
Generally, in an action to foreclose a mortgage, a plaintiff establishes its prima facieentitlement to judgment as a matter of law through the production of the mortgage, the unpaidnote, and evidence of default (see USBank N.A. v Cohen, 156 AD3d 844, 845 [2017]; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002[2015]). However, where, as here, a plaintiff's standing to commence a foreclosure action isplaced in issue by a defendant, the plaintiff must also prove its standing as part of its prima facieshowing (see US Bank N.A. v Cohen, 156 AD3d at 845). "A plaintiff has standing tocommence a foreclosure action where it is the holder or assignee of the underlying note, either byphysical delivery or execution of a written assignment prior to the commencement of the actionwith [*2]the filing of the complaint" (see id. at 845-846;Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361-362 [2015]). Once a note is transferred, the mortgage passes as anincident to the note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; USBank N.A. v Cohen, 156 AD3d at 846).
Here, the plaintiff established, prima facie, its standing by demonstrating that the note was inits possession when it commenced the action, as evidenced by its attachment of a copy of thenote endorsed in blank to the summons and complaint (see US Bank N.A. v Cohen, 156AD3d at 846; U.S. Bank N.A. vSaravanan, 146 AD3d 1010, 1011 [2017]; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 645[2016]; Deutsche Bank Natl. Trust Co. vLeigh, 137 AD3d 841, 842 [2016]; Emigrant Bank v Larizza, 129 AD3d 904, 905 [2015]; Nationstar Mtge., LLC v Catizone, 127AD3d 1151, 1152 [2015]). The plaintiff's submissions also established that the subject loanwas not a "home loan" within the meaning of RPAPL 1304, and that the plaintiff was thereforenot required to comply with the statutory notice provisions of RPAPL 1304 (see HSBC Bank USA, N.A. v Ozcan,154 AD3d 822, 825 [2017]; Bayview Loan Servicing, LLC v Akande, 154 AD3d 694, 695[2017]). The plaintiff further established its prima facie entitlement to judgment as a matter oflaw by producing the mortgage, the note, and evidence of default (see US Bank N.A. v Cohen, 156 AD3d844, 846 [2017]). In opposition, the defendant failed to raise a triable issue of fact.Accordingly, we agree with the Supreme Court's determination granting that branch of theplaintiff's motion which was for summary judgment on the complaint insofar as asserted againstthe defendant. For the same reasons, we agree with the court's determination denying that branchof the defendant's cross motion which was for summary judgment dismissing the complaintinsofar as asserted against him.
Furthermore, we agree with the Supreme Court's determination denying that branch of thedefendant's cross motion which was pursuant to CPLR 3126 to dismiss the complaint insofar asasserted against him. " 'The Supreme Court has broad discretion in supervisingdisclosure and in resolving discovery disputes' " (Household Fin. Realty Corp. of N.Y. v Cioppa, 153 AD3d 908, 910[2017], quoting Clarke v Clarke,113 AD3d 646, 646 [2014]). "A court may strike a party's pleading or impose some othersanction if the party 'refuses to obey an order for disclosure or wilfully fails to discloseinformation which the court finds ought to have been disclosed' " (Household Fin.Realty Corp. of N.Y. v Cioppa, 153 AD3d at 910, quoting CPLR 3126). "However, '[b]eforea court invokes the drastic remedy of striking a pleading, or even of precluding evidence, theremust be a clear showing that the failure to comply with court-ordered discovery was willful andcontumacious' " (Household Fin. Realty Corp. of N.Y. v Cioppa, 153 AD3d at910, quoting Zakhidov v BoulevardTenants Corp., 96 AD3d 737, 739 [2012]). The defendant failed to demonstrate that theplaintiff's response to the defendant's request to admit was inadequate and failed to otherwisedemonstrate that the plaintiff willfully failed to comply with the discovery demand (see PNC Bank, N.A. v Campbell, 142AD3d 1148, 1149 [2016]). Mastro, J.P., Dillon, Cohen and Iannacci, JJ., concur.