Calendar Date: February 14, 2017
Offices of Christiaan van Niekerk, PLLC, Schenectady (Sandra
Poland Demars of counsel), for appellants.
Such & Crane, LLP, Rochester (John A. Cirando of D.J.
& J.A. Cirando, Syracuse, of counsel), for respondent.
Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (J. Sise, J.), entered
January 4, 2016 in Montgomery County, which granted
plaintiff's motion for, among other things, summary
April 2010, plaintiff commenced this mortgage foreclosure
action alleging that defendants Anthony M. Howland and Donna
M. Falconio (hereinafter collectively referred to as
defendants) defaulted on a note secured by a mortgage on real
property located in Montgomery County. Defendants timely
answered and asserted three affirmative defenses, none of
which raised the issue of plaintiff's standing to
commence this action.
October 2013, JP Morgan Chase Bank, National Association, as
successor by merger to plaintiff, assigned the mortgage to M
& T Bank, as successor by merger to M & T Mortgage
Corporation. Only then did defendants move for dismissal of
the complaint, arguing, among other things, that plaintiff
lacked standing. Supreme Court denied the motion in a
September 2014 order, finding that defendants had waived this
affirmative defense. Plaintiff later moved for summary
judgment and to substitute M & T Bank as the named
plaintiff in this action. In January 2016, Supreme Court
granted plaintiff's motion in its entirety. Defendants
Court correctly found that defendants waived their right to
contest plaintiff's standing inasmuch as "the
failure to raise lack of standing as an affirmative defense
in an answer or in a pre-answer motion to dismiss constitutes
a waiver of such affirmative defense" (HSBC Mtge.
Corp. [USA] v Johnston, 145 A.D.3d 1240, 1241 ;
see CPLR 3211 [a] ; [e]; HSBC Bank USA, N.A.
v Sage, 143 A.D.3d 1214, 1215 ; Nationstar
Mtge., LLC v Alling, 141 A.D.3d 916, 917 ).
Further, contrary to defendants' assertion, "the
standing issue does not implicate the jurisdiction of Supreme
Court such as to render it nonwaivable" (Kruger v
State Farm Mut. Auto. Ins. Co., 79 A.D.3d 1519, 1520
; see HSBC Bank USA, N.A. v Ashley, 104 A.D.3d
975, 976 , lv dimissed 21 N.Y.3d 956');">21 N.Y.3d 956 ;
see also CNB Realty v Stone Cast, Inc., 127 A.D.3d
1438, 1439 ).
Supreme Court err in finding that plaintiff met its initial
summary judgment burden. To establish its entitlement to
summary judgment, plaintiff produced "the mortgage and
unpaid note, along with evidence of [defendants'] default
in payments" (Citibank, NA v Abrams, 144 A.D.3d
1212, 1214 ; see Nationstar Mtge., LLC v
Alling, 141 A.D.3d at 917-918; see generally
Wells Fargo Bank, N.A. v Walker, 141 A.D.3d 986, 987 ).
"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 A.D.3d at 918 [citations omitted]. In opposition,
defendants proffered an affirmation by their attorney
challenging plaintiff's standing. They also produced the
documents that they had already submitted with their
unsuccessful motion for dismissal of the complaint based upon
lack of standing. In view of this, we agree with Supreme
Court that defendants failed to raise a question of fact as
to a bona fide defense to foreclosure (id.).
we reject defendants' contention that Supreme Court
abused its discretion in granting plaintiff's request to
substitute M & T Bank as the named plaintiff in this
action (see CPLR 1018; Schwyter v DeNoble,
142 A.D.3d 699, 699 ). Defendants' remaining
contentions, to the extent not expressly addressed herein,
have been considered and determined to be lacking in merit.
J.P., Egan Jr., Devine and ...