Raimondi Law, P.C., Massapequa, NY (Christopher A. Raimondi
of counsel), for appellants.
& Eisenberg, P.C., Depew, NY (Todd N. Robinson of
counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A.
COHEN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendants Webb Garrison
and Betty G. Garrison appeal, as limited by their brief, from
so much of an order of the Supreme Court, Suffolk County
(Rebolini, J.), dated July 6, 2015, as, upon a decision of
the same court, also dated July 6, 2015, granted those
branches of the plaintiff's motion which were for summary
judgment on the complaint insofar as asserted against them
and for an order of reference.
that the order is affirmed insofar as appealed from, with
plaintiff, Deutsche Bank Trust Company Americas (hereinafter
the Bank), commenced this action against the defendants Webb
Garrison and Betty G. Garrison (hereinafter together the
homeowners), among others, to foreclose a mortgage. Annexed
to the complaint was a copy of a note executed by the
homeowners in which they promised to repay a loan they
received from HSBC Mortgage Corporation (USA), which had been
endorsed to the Bank. The Bank moved, inter alia, for summary
judgment on the complaint insofar as asserted against the
homeowners, and for an order of reference. The Supreme Court
granted the Bank's motion.
establish prima facie entitlement to judgment as a matter of
law in an action to foreclose a mortgage, a plaintiff must
produce the mortgage, the unpaid note, and evidence of
default (see Deutsche Bank Natl. Trust Co. v Abdan,
131 A.D.3d 1001; HSBC Bank, USA v Hagerman, 130
A.D.3d 683, 683-684; Plaza Equities, LLC v Lamberti,
118 A.D.3d 688, 689). However, "[w]here, as here, a
plaintiff's standing to commence a foreclosure action is
placed in issue by [a] defendant, it is incumbent upon the
plaintiff to prove its standing to be entitled to
relief" (Wells Fargo Bank, N.A. v Arias, 121
A.D.3d 973, 973-974 [internal quotation marks omitted];
see Security Lending, Ltd. v New Realty Corp., 142
A.D.3d 986, 987; Deutsche Bank Natl. Trust Co. v
Brewton, 142 A.D.3d 683, 684; Deutsche Bank Natl.
Trust Co. v Cunningham, 142 A.D.3d 634, 635). "A
plaintiff establishes its standing in a mortgage foreclosure
action by demonstrating that, when the action was commenced,
it was either the holder or assignee of the underlying
note" (Dyer Trust 2012-1 v Global World Realty,
Inc., 140 A.D.3d 827, 828; see Aurora Loan Servs.,
LLC v Taylor, 25 N.Y.3d 355, 361-362; Flagstar Bank,
FSB v Mendoza, 139 A.D.3d 898). "Either a written
assignment of the underlying note or the physical delivery of
the note prior to the commencement of the foreclosure action
is sufficient to transfer the obligation, and the mortgage
passes with the debt as an inseparable incident"
(Dyer Trust 2012-1 v Global World Realty, Inc., 140
A.D.3d at 828; see Aurora Loan Servs., LLC v Taylor,
25 N.Y.3d at 361-362).
the record demonstrates that a copy of the underlying note
bearing an endorsement to the Bank was annexed to the
complaint. Thus, the Bank established, prima facie, that it
had standing to prosecute this action by demonstrating that a
written assignment of the note occurred prior to the
commencement of the action (see JPMorgan Chase Bank, N.A.
v Weinberger, 142 A.D.3d 643, 645; JPMorgan Chase
Bank, N.A. v Roseman, 137 A.D.3d 1222, 1223;
Deutsche Bank Natl. Trust Co. v Leigh, 137 A.D.3d
841, 842; Emigrant Bank v Larizza, 129 A.D.3d 904,
905; Nationstar Mtge., LLC v Catizone, 127 A.D.3d
Bank sustained its burden of demonstrating its prima facie
entitlement to judgment as a matter of law by submitting the
mortgage, the note, and an affidavit of its servicer's
vice president, attesting to the homeowners' default in
the repayment of their mortgage loan obligation (see
Deutsche Bank Natl. Trust Co. v Leigh, 137 A.D.3d at
842). In opposition, the homeowners failed to raise a triable
issue of fact.
the Supreme Court properly granted those branches of the
Bank's motion which were for summary judgment on the
complaint insofar as asserted ...