New York Supreme and/or Appellate Courts Appellate Division, First Department
March 7, 2013
ONEWEST BANK FSB,
HTFC CORPORATION, ET AL.,
OneWest Bank FSB v Carey
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 7, 2013 Andrias, J.P., Friedman, Acosta, Freedman, Clark, JJ.
Order, Supreme Court, New York County (Carol E. Huff, J.), entered October 7, 2011, which denied defendant Gregory Carey's motion to dismiss the complaint, unanimously affirmed, without costs.
"In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action was commenced" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2d Dept 2009]). Here, the evidence submitted in opposition to defendant's motion, including the affidavit from plaintiff's employee, established that an assignment of the note had been effectuated by physical delivery of the note prior to the commencement of the instant action (see Bank of N.Y. Mellon Trust Co. NA v Sachar, 95 AD3d 695 [1st Dept 2012]).
We have considered defendant's remaining contentions, including the challenges to the evidence submitted in opposition to the motion, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 7, 2013
© 1992-2013 VersusLaw Inc.