HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-1, Mortgage Pass- Through Certificates, Respondent,
MORDECHAI SZOFFER et al., Appellants, et al., Defendants.
Calendar Date: February 21, 2017
Offices of Allen Kolber, Suffern (Allen A. Kolber of
counsel), for appellants.
Smith, LLP, New York City (Joseph B. Teig of counsel), for
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Supreme Court (Meddaugh, J.), entered
October 2, 2015 in Sullivan County, which, among other
things, granted plaintiff's motion for summary judgment.
April 2007, defendant Mordechai Szoffer, president of
defendant Royal Property Care, Inc., executed a note and
mortgage covering certain real property located in the hamlet
Sullivan County. Although Szoffer was the obligor on the note
and mortgage, Royal Property was the record owner of the
property. Szoffer failed to make the required payments
beginning in April 2009 and, in July 2009, the subject
mortgage was assigned to plaintiff. Plaintiff thereafter
commenced this mortgage foreclosure action against, among
others, Szoffer and Royal Property (hereinafter collectively
referred to as defendants). Following joinder of issue,
plaintiff moved for, among other things, summary judgment;
defendants opposed the motion and cross-moved to dismiss the
complaint - contending that plaintiff lacked standing.
Supreme Court, among other things, granted plaintiff's
motion for summary judgment, prompting this appeal.
affirm. "A plaintiff establishes its entitlement to
summary judgement in a mortgage foreclosure action by
submitting the mortgage and unpaid note, along with evidence
of default in payments" (Citibank, NA v Abrams,
144 A.D.3d 1212, 1214  [citations omitted]; see
Nationstar Mtge., LLC v Alling, 141 A.D.3d 916, 917
; HSBC Bank USA, N.A. v Sage, 112 A.D.3d 1126,
1127 , lvs dismissed 22 N.Y.3d 1172');">22 N.Y.3d 1172 , 23
N.Y.3d 1015 ). Here, in support of its motion for
summary judgment, plaintiff tendered, among other things, the
mortgage, the note (endorsed in blank), the assignment
agreement, portions of the applicable pooling and servicing
agreement (together with a schedule identifying the subject
loan as part of the pool of loans held in trust by plaintiff)
and proof of defendants' default, including the relevant
demand letters and notices. Plaintiff also submitted an
affidavit from one of the officers of its servicing agent,
who, upon reviewing all of the pertinent business records,
averred that plaintiff was in default commencing with the
April 1, 2009 mortgage payment and all subsequent payments
thereafter due. "Such proof was sufficient to
demonstrate [plaintiff's] prima facie entitlement to
judgment as a matter of law, thereby shifting the burden to
defendant[s] to raise a question of fact as to a bona fide
defense to foreclosure" (Nationstar Mtge., LLC v
Alling, 141 at 918 [citations omitted]; see HSBC
Bank USA, N.A. v Sage, 112 A.D.3d at 1127).
opposition, defendants submitted an attorney's affidavit,
together with case law and proof of mortgage assignments that
were unrelated to the property at issue, and argued that
plaintiff lacked standing. However, the record makes clear -
and defendants readily concede - that they failed to raise
lack of standing in their answer or in the context of a
timely pre-answer motion to dismiss, thereby waiving this
defense (see CPLR 3211 [a] ; [e]; HSBC Mtge.
Corp. [USA] v Johnston, 145 A.D.3d 1240, 1241 ;
Nationstar Mtge., LLC v Alling, 141 A.D.3d at 917).
To the extent that defendants argue that Supreme Court could
- and should - have raised this issue sua sponte and
dismissed the underlying complaint, courts have been
consistent in holding that "a party's lack of
standing does not constitute a jurisdictional defect and does
not warrant a sua sponte dismissal of the complaint by the
[trial] court" (Onewest Bank, FSB v Prince, 130
A.D.3d 700, 701 ; accord Consumer Solutions, LLC v
Charles, 137 A.D.3d 952, 953 ; Nationstar
Mtge., LLC v Wong, 132 A.D.3d 825, 825-826 ;
see Marcon Affiliates, Inc. v Ventra, 112 A.D.3d
1095, 1095-1096 ). Finally, while defendants assert
that, consistent with the provisions of CPLR 3025 (b), they
could have sought leave to amend their answer to raise lack
of standing as an affirmative defense, nothing in the record
suggests that they attempted to do so. Indeed, it does not
appear that defendants made any effort to raise this issue
until confronted with plaintiff's motion for summary
judgment - some 5½ years after this action was
commenced. Under these circumstances, defendants waived the
affirmative defense of standing . As our review of the
record reveals that defendants otherwise failed to raise any
bona fide defense to this foreclosure action,  Supreme Court
properly granted plaintiff's motion for summary judgment.
Defendants' remaining contentions, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.
McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.
that the order is affirmed, with costs.