| BAC Home Loans Servicing, LP v Alvarado |
| 2019 NY Slip Op 00584 [168 AD3d 1029] |
| January 30, 2019 |
| Appellate Division, Second Department |
[*1]
| BAC Home Loans Servicing, LP,Respondent, v Gregorio Alvarado et al., Appellants, et al.,Defendants. |
Lizarraga Law Firm, PLLC, Jackson Heights, NY (William R. Lizárraga of counsel),for appellants.
Leopold & Associates, PLLC, Armonk, NY (Fernando C. Rivera-Maissonet of counsel),for respondent.
In an action to foreclose a mortgage, the defendants Gregorio Alvarado and Jose DeLeonappeal from an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered August24, 2015. The order, insofar as appealed from, granted the plaintiff's motion, inter alia, forsummary judgment on the complaint insofar as asserted against those defendants and an order ofreference, and, in effect, denied that branch of those defendants' cross motion which was todismiss the complaint insofar as asserted against them for lack of standing.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted againstthe defendants Gregorio Alvarado and Jose DeLeon and an order of reference, and substitutingtherefor a provision denying the motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements, and so much of a subsequent order of the same court(Salvatore J. Modica, J.) entered June 8, 2017, as, in effect, upon reargument, adhered to thedetermination in the order entered August 24, 2015, granting the plaintiff's motion, isvacated.
The plaintiff commenced this action to foreclose a mortgage given by the defendant GregorioAlvarado to secure a note in the amount of $490,000. The complaint alleged, among other things,that the plaintiff was the owner and holder of the note, that Alvarado defaulted on the note andmortgage, and that the defendant Jose DeLeon was the current deed holder of the subjectproperty. Alvarado and DeLeon (hereinafter together the defendants), appearing pro se, answeredthe complaint with a general denial as to the allegations in the complaint. The defendants did notmake a pre-answer motion to dismiss the complaint on the ground of lack of standing and did notraise the issue of standing as an affirmative defense. The plaintiff subsequently moved, inter alia,for summary judgment on the complaint insofar as asserted against the defendants and for anorder of reference. The defendants opposed the plaintiff's motion and cross-moved, inter alia, todismiss the complaint insofar as asserted against them for lack of standing. In opposition to thedefendants' cross motion and in further support of its motion for summary judgment, the plaintiffintroduced evidence as to its standing. The plaintiff, however, never contended in the SupremeCourt that the defendants had waived the issue of standing. In the order appealed from, the courtgranted the plaintiff's motion and, in effect, denied the defendants' cross motion. On appeal, thedefendants contend that the court should have denied the plaintiff's motion, inter alia, forsummary judgment on the complaint insofar as asserted against them and an order of reference,and granted that branch of their cross motion which was to dismiss the complaint for lack ofstanding. The plaintiff contends, among other things, that the defendants waived the issue ofstanding by not raising it in a pre-answer motion to dismiss or as an affirmative defense and that,in any event, it established proper standing.
The defense of lack of standing in an action to foreclose a mortgage is waived if thedefendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense(see CPLR 3018 [b]; US Bank N.A. v Nelson, 169 AD3d 110 [2d Dept 2019]; Bank of N.Y. Trust Co., N.A. v Chiejina, 142 AD3d 570, 572[2016]; One W. Bank, FSB vVanderhorst, 131 AD3d 1028, 1028 [2015]; see also Matter of Fossella vDinkins, 66 NY2d 162, 167 [1985]). Here, in opposition to the plaintiff's motion forsummary judgment and in support of their cross motion to dismiss, the defendants argued that theplaintiff lacked standing to commence this action. The plaintiff, in its "reply . . . infurther support of plaintiff's motion for summary judgment, and in opposition to defendant's [sic]cross-motion to dismiss," entirely disregarded the defendants' waiver of the standing defense.Instead, the plaintiff sought to establish that it had standing to commence the action. Now,having litigated the standing defense on the merits in the Supreme Court—both on theoriginal motion and in opposition to reargument—the plaintiff argues on appeal that theissue of standing was waived. Having neglected to raise that dispositive issue in the SupremeCourt, the plaintiff may not raise it for the first time on this appeal (see Hurley v Tolfree,308 NY 358, 363 [1955]; Robles vBrooklyn-Queens Nursing Home, Inc., 131 AD3d 1032, 1033 [2015]; seegenerally Arthur Karger, Powers of the New York Court of Appeals § 17.1 at591-592 et seq. [3d ed rev 2005]), and we decline to address it (cf. Sega v State ofNew York, 60 NY2d 183, 190 n 2 [1983]; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 824 [2017]).
The plaintiff also failed, on the merits, to establish prima facie that it had standing tocommence the action. The loan servicer's affidavit, which asserted that the named plaintiff "wasin possession of the Note at the time of commencement of this action," provided no specifics asto the date of delivery or the date of commencement. The plaintiff's conclusory assertion as topossession on the date of commencement is insufficient to establish standing (see Central Mtge. Co. v Jahnsen, 150AD3d 661, 663 [2017]; DeutscheBank Natl. Trust Co. v Idarecis, 133 AD3d 702, 703-704 [2015]; cf. Aurora Loan Servs., LLC v Taylor,25 NY3d 355, 361 [2015]; U.S.Bank, N.A. v Noble, 144 AD3d 786, 788 [2016]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867 [2016]).Moreover, the plaintiff's alternative ground for establishing standing is without merit (seeU.S. Bank, N.A. v Noble, 144 AD3d at 788; Bank of N.Y. v Silverberg, 86 AD3d 274, 282 [2011]).Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, forsummary judgment on the complaint and an order of reference.
The parties' remaining contentions either are without merit or need not be addressed in lightof our determination. Mastro, J.P., Balkin, LaSalle and Connolly, JJ., concur.