McLaughlin & Stern, LLP, Great Neck (John M. Brickman of
counsel), for appellant.
Scollar Law Office, Staten Island (Marc Scollar of counsel),
Sweeny, J.P., Renwick, Kahn, Gesmer, JJ.
Supreme Court, New York County (Manuel J. Mendez, J.),
entered June 10, 2015, which, to the extent appealed from as
limited by the briefs, granted plaintiff's motion for
summary judgment against defendant Amit Louzon, denied
Louzon's cross motion for summary judgment dismissing the
complaint against him, and denied Louzon's motion to
amend his pleadings, unanimously modified, on the law, to the
extent of denying plaintiff's motion for summary
judgment, granting Louzon's motion to amend his answer to
add the affirmative defense of lack of standing, and
otherwise affirmed, without costs; and order, same court and
Justice, entered July 31, 2015, which, to the extent appealed
from as limited by the briefs, upon plaintiff's motion,
appointed a referee to compute the sums due plaintiff under a
note and New York mortgage, unanimously reversed, without
costs, and the appointment vacated.
to CPLR 1018, nonparty W89D5 LLC may continue to prosecute
this appeal in Louzon's name, despite Louzon having
transferred his interest in the premises to W89D5, which he
solely owns, and which neither party has requested be
substituted in this action (Central Fed. Sav. v 405 W.
45th St., 242 A.D.2d 512');">242 A.D.2d 512 [1st Dept 1997]; cf.
HSBC Guyerzeller Bank AG v Chascona N.V., 66 A.D.3d
488, 489 [1st Dept 2009] [party was properly substituted as
the foreclosure plaintiff]).
motion court properly denied Louzon's cross motion for
summary judgment. On a prior appeal, this Court unanimously
held that Louzon purchased the premises subject to the New
York mortgage (Grand Pac. Fin. Corp. v Ashkenazi,
108 A.D.3d 425');">108 A.D.3d 425 [1st Dept 2013], lv denied 22 N.Y.3d
1015 ). The Mutual Settlement Agreement and General
Release in the Michigan foreclosure action did not contain or
constitute a waiver of plaintiff's foreclosure rights
under the New York mortgage. Additionally, RPAPL 1371 does
not apply, since there has been no foreclosure sale under the
New York mortgage (Hometown Bank of Hudson Val. v
Colucci, 127 A.D.3d 702, 704 [2d Dept 2015]). RPAPL 1306
is also inapplicable. That statute is triggered by RPAPL
1304, which applies only to a "home loan, " and the
New York mortgage is not a "home loan" within the
meaning of RPAPL 1304.
because Louzon raised triable issues of fact as to
plaintiff's standing, the motion court should have
granted Louzon's motion under CPLR 3025(b) to the extent
of permitting Louzon to amend his answer to add the
affirmative defense of standing, and, upon doing so, denied
plaintiff's motion for summary judgment. "A
plaintiff may establish standing in a foreclosure action
either by showing assignment of the mortgage note or physical
delivery of the note prior to the commencement of
the foreclosure action" (U.S. Bank N.A. v
Askew, 138 A.D.3d 402, 402 [1st Dept 2016] [emphasis
added]). However, a plaintiff may not do so by means of
"[c]onclusory, boiler plate statements" (Wells
Fargo Bank, N.A. v Jones, 139 A.D.3d 520, 524
[1st Dept 2016] [internal quotation marks omitted][alteration
in original]). In addition, inconsistent statements regarding
possession of the note at the time plaintiff commenced the
foreclosure action create a triable issue of fact as to
standing precluding summary judgment (see U.S. Bank, N.A.
v Collymore, 68 A.D.3d 752, 754 [2d Dept 2009];
Wells Fargo Bank, N.A. v Ostiguy, 127 A.D.3d 1375,
1377 [3d Dept 2015]).
plaintiff commenced this foreclosure action on August 29,
2013. In support of its summary judgment motion, and in reply
to Louzon's opposition and cross motion raising the issue
of standing, plaintiff submitted conflicting affidavits from
Carl Lin, the vice president of Grand Pacific Holdings Corp.,
the subservicer for Wells Fargo Bank . In support of
plaintiff's motion for summary judgment, Lin stated, in
an affidavit sworn to on June 3, 2014, that plaintiff was in
"physical possession" of the note, the guaranty,
the mortgage, and all other loan documents. Specifically, Lin
stated that plaintiff came into possession of these documents
following their assignment from the trust depositor, Grand
Pacific Business Loan LLC, pursuant to an agreement dated
October 5, 2012 and recorded on October 25, 2012.
in his reply affidavit, sworn to on September 10, 2014, Lin
stated that on April 9, 2012, plaintiff sent the note, the
allonge, the guaranty, and the other loan documents to Grand
Pacific. Lin further stated in his reply affidavit that since
April 11, 2012, Grand Pacific has "continuously had
physical custody" of the note and the other documents.
Lin later stated in his reply affidavit that Grand Pacific
was entitled to hold the note and related documents for
plaintiff pursuant to a servicing agreement, this statement
was itself inconsistent. Lin never mentioned this agreement
in his first affidavit, in which he stated that plaintiff was
in physical possession of the note and related documents.
plaintiff was inconsistent as to whether it physically held
the note at the time it commenced this foreclosure action.
Therefore, plaintiff's summary judgment motion should
have been denied (see Collymore, 68 A.D.3d at 754;
Ostiguy, 127 A.D.3d at 1377).
we are denying plaintiff's motion for summary judgment,
we reverse and vacate the order of reference appointing a
referee to compute the sum due to plaintiff.
considered Louzon's remaining contentions, including his
argument that plaintiff has violated ...