| Nationstar Mtge., LLC v Rodriguez |
| 2018 NY Slip Op 08141 [166 AD3d 990] |
| November 28, 2018 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC,Respondent, v Richard Rodriguez, Appellant, et al.,Defendants. |
Christopher Thompson, West Islip, NY, for appellant.
Shapiro, DiCaro & Barak, LLC (Akerman LLP, New York, NY [Kathleen R.Fitzpatrick and Jordan M. Smith], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Richard Rodriguez appeals from(1) an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated August19, 2016, and (2) an order and judgment of foreclosure and sale (one paper) of the samecourt entered September 14, 2016. The order, insofar as appealed from, granted theplaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale,and denied those branches of that defendant's cross motion which were pursuant toCPLR 5015 (a) (1) to vacate an order of reference dated July 27, 2015, entered upon hisdefault in opposing the plaintiff's prior motion, inter alia, for an order of reference, and todismiss the complaint insofar as asserted against him for lack of standing. The order andjudgment of foreclosure and sale granted the plaintiff's motion to confirm the referee'sreport and for a judgment of foreclosure and sale, confirmed the referee's report, anddirected the sale of the subject property.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the order and judgment of foreclosure and sale is affirmed; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appealtherefrom terminated with the entry of the order and judgment of foreclosure and sale inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised onthe appeal from the order are brought up for review and have been considered on theappeal from the order and judgment of foreclosure and sale (see CPLR 5501 [a][1]).
The plaintiff commenced this mortgage foreclosure action against, among others, thedefendant Richard Rodriguez (hereinafter the defendant). The defendant interposed atimely answer asserting various affirmative defenses, including lack of standing.Thereafter, the plaintiff moved, inter alia, for an order of reference. The plaintiff's motionwas granted, as unopposed, in an order [*2]of referencedated July 27, 2015. The plaintiff subsequently moved to confirm the referee's report andfor a judgment of foreclosure and sale. The defendant cross-moved, inter alia, pursuant toCPLR 5015 (a) (1) to vacate the order of reference entered upon his default in opposingthe plaintiff's prior motion, inter alia, for an order of reference, and to dismiss thecomplaint insofar as asserted against him for lack of standing.
In an order dated August 19, 2016, the Supreme Court granted the plaintiff's motionto confirm the referee's report and for a judgment of foreclosure and sale, and denied thedefendant's cross motion. On September 14, 2016, the court entered an order andjudgment of foreclosure and sale, inter alia, confirming the referee's report and directingthe sale of the subject property. The defendant appeals.
"In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a) (1), themoving party is required to demonstrate a reasonable excuse for his or her default and apotentially meritorious opposition to the motion" (New Century Mtge. Corp. v Chimmiri, 146 AD3d 893, 894[2017] [internal quotation marks omitted]; see Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557[2014]). " 'A motion to vacate a default is addressed to the sound discretion ofthe court' " (K.A. vWappingers Cent. Sch. Dist., 151 AD3d 828, 830 [2017], quoting Vujanic v Petrovic, 103 AD3d791, 792 [2013]; see Santosv Penske Truck Leasing Co., 105 AD3d 1029, 1029 [2013]). Here, thedefendant demonstrated a reasonable excuse for his default in opposing the plaintiff'smotion, inter alia, for an order of reference. However, he failed to present any evidencesufficient to establish a potentially meritorious opposition to the motion (cf. Santos vPenske Truck Leasing Co., 105 AD3d at 1029).
A plaintiff establishes its standing in a mortgage foreclosure action by demonstratingthat, when the action was commenced, it was either the holder or assignee of theunderlying note (see AuroraLoan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]; Central Mtge. Co. v Jahnsen,150 AD3d 661, 663 [2017]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754[2009]). "Either a written assignment of the underlying note or the physical delivery ofthe note prior to the commencement of the foreclosure action is sufficient to transfer theobligation, and the mortgage passes with the debt as an inseparable incident" (CentralMtge. Co. v Jahnsen, 150 AD3d at 663 [internal quotation marks omitted]; see Deutsche Bank Trust Co. Ams.v Garrison, 147 AD3d 725, 726 [2017]). In this case, the plaintiff established itsstanding by attaching a copy of the note, endorsed in blank, to the complaint at the timethe action was commenced (seeDeutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491, 492 [2017]; U.S. Bank N.A. v Saravanan,146 AD3d 1010, 1011 [2017]; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d643, 645 [2016]). The defendant failed to submit evidence to the contrary in supportof his cross motion.
Accordingly, we agree with the Supreme Court's determination to grant the plaintiff'smotion to confirm the referee's report and for a judgment of foreclosure and sale, anddeny those branches of the defendant's cross motion which were to vacate the order ofreference entered upon his default in opposing the plaintiff's prior motion, inter alia, foran order of reference, and to dismiss the complaint insofar as asserted against him forlack of standing. Chambers, J.P., Sgroi, Barros and Iannacci, JJ., concur.