| Deutsche Bank Natl. Trust Co. v Kingsbury |
| 2019 NY Slip Op 02681 [171 AD3d 871] |
| April 10, 2019 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Respondent, v Phillip Kingsbury, Appellant, et al.,Defendants. |
Joseph Falbo, Jr., Mineola, NY (Raymond S. Voulo of counsel), for appellant.
Shapiro DiCaro & Barak, LLC, Rochester, NY (Jason P. Dionisio and Ellis M. Oster ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Phillip Kingsbury appeals from an orderof the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 17, 2016. Theorder, insofar as appealed from, granted that branch of the plaintiff's motion which was forsummary judgment on the complaint insofar as asserted against that defendant.
Ordered that the order is affirmed insofar as appealed from, with costs.
In February 2006, the defendant Phillip Kingsbury (hereinafter the defendant) executed anadjustable-rate note in the amount of $618,000 in favor of New Century Mortgage Corporation(hereinafter New Century), which was secured by a mortgage on real property located inWantagh. By assignment executed on March 24, 2009, the mortgage was assigned to theplaintiff. In October 2012, the plaintiff commenced this action to foreclose the mortgage againstthe defendant, among others. Annexed to the complaint was a copy of the note, which wasendorsed in blank. The defendant served an answer in which he asserted, inter alia, theaffirmative defense that the plaintiff lacked standing. The plaintiff moved, among other things,for summary judgment on the complaint insofar as asserted against the defendant. The SupremeCourt, inter alia, granted that branch of the plaintiff's motion, and the defendant appeals.
Generally, in a mortgage foreclosure action, a plaintiff demonstrates its prima facieentitlement to judgment as a matter of law by producing the mortgage, the unpaid note, andevidence of default (see HSBC BankUSA, N.A. v Oscar, 161 AD3d 1055, 1056 [2018]; US Bank N.A. v Cohen, 156 AD3d 844, 845 [2017]; Flagstar Bank, FSB v Mendoza, 139AD3d 898, 899 [2016]). Where, as here, the plaintiff's standing has been placed in issue bythe defendant's answer, the plaintiff must prove its standing as part of its prima facie showing ona motion for summary judgment (see HSBC Bank USA, N.A. v Oscar, 161 AD3d at1056; CitiMortgage, Inc. vMcKenzie, 161 AD3d 1040, 1041 [2018]; US Bank N.A. v Cohen, 156 AD3d at845). A plaintiff establishes its standing to commence a foreclosure action by demonstrating thatit was either the holder or assignee of the underlying note at the time the action was commenced(see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361-362 [2015]; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 725[2017]; Deutsche Bank Natl. Trust Co. vLogan, 146 AD3d 861, 862 [2017]). Either a written assignment of the underlying noteor the physical delivery of the note prior to the commencement of the action is sufficient totransfer the obligation, and the mortgage passes with the debt as an inseparable incident (seeAurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362; Deutsche Bank Trust Co. Ams.v Garrison, 147 AD3d at 726; U.S.Bank N.A. v Saravanan, 146 AD3d 1010, 1011 [2017]; U.S. Bank, N.A. v Noble, 144 AD3d786, 786 [2016]).
Here, the plaintiff established, prima facie, its standing by demonstrating that the originalnote was in its possession when it commenced the action, as evidenced by its attachment of acopy of the original note, endorsed in blank, to the summons and complaint when the action wascommenced (see Wells Fargo Bank,N.A. v Inigo, 164 AD3d 545, 546 [2018]; CitiMortgage, Inc. v McKenzie, 161AD3d at 1041; U.S. Bank N.A. vHenry, 157 AD3d 839, 841 [2018]; U.S. Bank N.A. v Saravanan, 146 AD3d 1010 [2017]). Theplaintiff also established its prima facie entitlement to judgment as a matter of law by producingthe mortgage, the note, and evidence of default.
In opposition, the defendant failed to raise a triable issue of fact. The defendant's contentionsregarding the validity of the mortgage assignment are irrelevant to the issue of the plaintiff'sstanding (see Silvergate Bank v CalkulaProps., Inc., 150 AD3d 1295, 1296 [2017]; New York Community Bank v McClendon, 138 AD3d 805, 807[2016]). Further, where the note is affixed to the complaint, it is unnecessary to give factualdetails of the delivery in order to establish that possession was obtained prior to a particular date(see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 362; U.S. Bank N.A. vHenry, 157 AD3d at 841; WellsFargo Bank, N.A. v Thomas, 150 AD3d 1312, 1313 [2017]; JPMorgan Chase Bank, N.A. vWeinberger, 142 AD3d 643, 645 [2016]).
Accordingly, we agree with the Supreme Court's determination to grant that branch of theplaintiff's motion which was for summary judgment on the complaint insofar as asserted againstthe defendant. Scheinkman, P.J., Leventhal, Connolly and Brathwaite Nelson, JJ., concur.