| Deutsche Bank Natl. Trust Co. v Homar |
| 2018 NY Slip Op 05017 [163 AD3d 522] |
| July 5, 2018 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee, in Trustfor the Registered Holders of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-ThroughCertificates, Series 2004-R2, Respondent, v Andrew J. Homar, Appellant, et al.,Defendants. |
Joseph E. Ruyak III, Chester, NY, for appellant.
McGlinchey Stafford PLLC, New York, NY (Victor L. Matthews II of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Andrew J. Homar appeals from twoorders of the Supreme Court, Orange County (Nicholas De Rosa, J.), both dated August 27,2015. The first order denied that defendant's motion for summary judgment dismissing thecomplaint insofar as asserted against him and to impose sanctions against the plaintiff pursuant to22 NYCRR 130-1.1. The second order, insofar as appealed from, denied that defendant's motionto impose sanctions pursuant to 22 NYCRR 130-1.1 and for an award of an attorney's feepursuant to Real Property Law § 282.
Ordered that the first order is affirmed; and it is further,
Ordered that the second order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In January 2004, the defendant Andrew J. Homar (hereinafter the appellant) executed a noteand mortgage in favor of Ameriquest Mortgage Company (hereinafter AMC) on property locatedon Purgatory Road in Goshen. In December 2013, the plaintiff, Deutsche Bank National TrustCompany (hereinafter the plaintiff), commenced this action against the appellant, among others,seeking to foreclose the mortgage. On May 9, 2014, the appellant moved for summary judgmentdismissing the complaint insofar as asserted against him on the ground, inter alia, that theplaintiff lacked standing. The appellant also moved to impose sanctions against the plaintiffpursuant to 22 NYCRR 130-1.1 for commencing a frivolous foreclosure action.
On June 12, 2014, while the appellant's motion was pending, the plaintiff moved todiscontinue the action without prejudice on the ground that the notice sent to the appellantpursuant to RPAPL 1304 was not filed with the New York State Department of FinancialServices. The appellant opposed the motion, contending that the failure to file the RPAPL 1304notice was not fatal to the complaint and is not a jurisdictional defect. The appellant's attorneystated in his affirmation [*2]that the appellant expressly waivedany defense arising from the failure to file the RPAPL 1304 notice. The appellant also moved toimpose sanctions against the plaintiff pursuant to 22 NYCRR 130-1.1 and for an award of anattorney's fee pursuant to Real Property Law § 282. In light of the appellant'swaiver, the plaintiff agreed to withdraw the motion to discontinue the action.
In an order dated August 27, 2015, the Supreme Court denied the appellant's motion forsummary judgment dismissing the complaint insofar as asserted against him and to imposesanctions against the plaintiff. In a separate order, also dated August 27, 2015, the court grantedthe plaintiff's application to withdraw its motion to discontinue the action and denied theappellant's motion to impose sanctions and for an award of an attorney's fee on the ground thatthe plaintiff's motion to discontinue was made in good faith and its conduct was not frivolous.The appellant appeals from both orders.
The appellant's contention that he was entitled to summary judgment dismissing thecomplaint insofar as asserted against him based on the plaintiff's failure to establish that it hadstanding to commence this action is without merit. On a motion for summary judgment, "theburden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, ratherthan on the plaintiff to affirmatively establish its standing in order for the motion to be denied"(Deutsche Bank Trust Co. Ams. vVitellas, 131 AD3d 52, 59-60 [2015]; see Citicorp Mtge. v Adams, 153 AD3d 779, 780 [2017]; Wells Fargo Bank, N.A. v Talley, 153AD3d 583, 585 [2017]; U.S. BankN.A. v Handler, 140 AD3d 948, 950 [2016]). "To defeat a defendant's motion, theplaintiff has no burden of establishing its standing as a matter of law" (Deutsche Bank TrustCo. Ams. v Vitellas, 131 AD3d at 60; see Wells Fargo Bank, N.A. v Talley, 153AD3d at 585). A plaintiff has standing to commence a foreclosure action where it is the holder orassignee of the underlying note, either by physical delivery or execution of a written assignmentprior to the commencement of the action with the filing of the complaint (see Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361 [2015]; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684[2016]). Here, since the plaintiff attached a copy of the note, which was endorsed to the plaintiff,to the summons and complaint at the time this action was commenced, the appellant failed tomeet his burden of establishing, prima facie, the plaintiff's lack of standing as a matter of law (see US Bank N.A. v Cohen, 156 AD3d844, 846-847 [2017]).
The appellant's contention that the plaintiff failed to submit evidence establishing that hedefaulted on the mortgage is also without merit. "On a summary judgment motion by adefendant, the defendant does not meet its initial burden by merely pointing to gaps in theplaintiff's case; rather, it must affirmatively demonstrate the merit of its claim or defense" (Vumbico v Estate of Wiltse, 156 AD3d939, 941 [2017]).
The appellant failed to establish that the conduct of the plaintiff or its counsel was frivolous.Therefore, the Supreme Court providently exercised its discretion in denying those branches ofthe appellant's motions which were to impose sanctions pursuant to 22 NYCRR 130-1.1.
The appellant's remaining contentions are without merit. Mastro, J.P., Chambers, Sgroi andMaltese, JJ., concur.