| Cenlar FSB v Lanzbom |
| 2019 NY Slip Op 00092 [168 AD3d 670] |
| January 9, 2019 |
| Appellate Division, Second Department |
[*1]
| Cenlar FSB, Appellant, v Cindy Lanzbom, Respondent,et al., Defendant. |
Houser & Allison, APC, New York, NY (Jacqueline Aiello and Kathleen Massimo ofcounsel), for appellant.
The Schwartz Law Group, P.C., Bethpage, NY (Kenneth B. Schwartz of counsel), forrespondent.
In an action, inter alia, to cancel and vacate a satisfaction of mortgage, the plaintiff appealsfrom an order of the Supreme Court, Rockland County (Gerald E. Loehr, J.), dated April 20,2016. The order granted that branch of the cross motion of the defendant Cindy Lanzbom whichwas for summary judgment dismissing the complaint insofar as asserted against her for lack ofstanding.
Ordered that the order is reversed, on the law, with costs, that branch of the cross motion ofthe defendant Cindy Lanzbom which was for summary judgment dismissing the complaintinsofar as asserted against her for lack of standing is denied, and the matter is remitted to theSupreme Court, Rockland County, for further proceedings in accordance herewith.
In November 2002, Cindy Lanzbom (hereinafter the defendant) executed a note in the sum of$300,000 in favor of HSBC Mortgage Corporation (USA) (hereinafter HSBC), which wassecured by a mortgage on certain property located in Pomona (hereinafter the first mortgage). InMay 2004, the defendant executed a second note in the sum of $9,520 in favor of FairmontFunding, Ltd., which was secured by a mortgage on the same property (hereinafter the secondmortgage). The defendant also executed a consolidated note and a consolidation, extension, andmodification agreement, creating a single lien in the sum of $305,000. On May 27, 2004, HSBCrecorded a satisfaction of the first mortgage.
In July 2014, the plaintiff, the assignee of the first and second mortgages, commenced thisaction, inter alia, to cancel and vacate the satisfaction of mortgage. The defendant interposed ananswer with various affirmative defenses, including the plaintiff's alleged lack of standing tocommence this action. In January 2016, the plaintiff moved, inter alia, for summary judgment onthe complaint and to strike the defendant's answer. The defendant opposed the motion andcross-moved, inter alia, pursuant to CPLR 3025 (b) for leave to amend her answer to add astatute of limitations defense, and for summary judgment dismissing the complaint insofar asasserted against her for lack of standing. In the order appealed from, the Supreme Court grantedthat branch of the defendant's cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against her for lack of standing. The court did not address thosebranches of the plaintiff's motion which were for summary judgment on the complaint and tostrike the defendant's answer, or that branch of the defendant's cross motion which was pursuantto CPLR 3025 (b) for leave to amend her answer to add a statute of limitations defense. Theplaintiff appeals.
"On a motion for summary judgment, 'the burden is on the moving defendant to establish,prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establishits standing in order for the motion to be denied' " (Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d 522, 523[2018], quoting Deutsche Bank TrustCo. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]; see Citicorp Mtge. v Adams, 153 AD3d 779, 780 [2017]). "Todefeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter oflaw" (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d at 60; see Deutsche BankNatl. Trust Co. v Homar, 163 AD3d at 523). Here, the defendant merely pointed to allegedgaps in the plaintiff's case and failed to meet her burden of establishing, prima facie, theplaintiff's lack of standing as a matter of law (see Deutsche Bank Natl. Trust Co. vHomar, 163 AD3d at 523-524).
The defendant's remaining contentions are without merit.
Accordingly, since the defendant failed to establish her prima facie entitlement to judgmentas a matter of law, that branch of her cross motion which was for summary judgment dismissingthe complaint insofar as asserted against her for lack of standing should have been deniedwithout regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In light of the Supreme Court's determination as to the plaintiff's lack of standing, the courtdid not consider the merits of those branches of the plaintiff's motion which were for summaryjudgment on the complaint and to strike the defendant's answer, or that branch of the defendant'scross motion which was pursuant to CPLR 3025 (b) for leave to amend her answer to add astatute of limitations defense. Therefore, we remit the matter to the Supreme Court, RocklandCounty, for a determination of those branches of the plaintiff's motion and the defendant's crossmotion on the merits (see DeutscheBank Natl. Trust Co. v Martin, 134 AD3d 665, 665-666 [2015]). Dillon, J.P., Roman,Miller and Duffy, JJ., concur.