Steve Okenwa, P.C., New York, NY, for appellants.
Davidson Fink LLP, Rochester, NY (William A. Santmyer and
Larry T. Powell of counsel), for respondent.
M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE,
BETSY BARROS, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendants Juliet Willis
and Premier Real Estate Co., LLC, appeal, as limited by their
brief, from so much of an order of the Supreme Court, Kings
County (Partnow, J.), dated February 25, 2014, as granted
those branches of the plaintiff's motion which were for
summary judgment on the complaint insofar as asserted against
the defendant Juliet Willis, leave to enter a default
judgment against the defendant Premier Real Estate Co., LLC,
and an order of reference.
that the order is reversed insofar as appealed from, on the
law, with costs, and those branches of the plaintiff's
motion which were for summary judgment on the complaint
insofar as asserted against the defendant Juliet Willis,
leave to enter a default judgment against the defendant
Premier Real Estate Co., LLC, and an order of reference are
as here, a plaintiff's standing to commence a foreclosure
action is placed in issue by the defendant, it is incumbent
upon the plaintiff to prove its standing to be entitled to
relief (see Citimortgage, Inc. v Klein, 140 A.D.3d
913, 914; Bank of N.Y. Mellon v Visconti, 136 A.D.3d
950, 950). A plaintiff has standing in a mortgage foreclosure
action where it is the holder or assignee of the underlying
note at the time the action was commenced (see Aurora
Servs. LLC v Taylor, 25 N.Y.3d 355, 361; Wells Fargo
Bank, N.A. v Marchione, 69 A.D.3d 204, 207-209; U.S.
Bank, N.A. v Collymore, 68 A.D.3d 752, 754).
"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" (U.S. Bank, N.A. v
Collymore, 68 A.D.3d at 754; see Aurora Loan Servs.,
LLC v Taylor, 25 N.Y.3d at 361-362).
the plaintiff attempted to establish its standing by
submitting the affidavit of Kelly Thompson, an Assistant
V.P., Operations Team Manager, at Bank of America, N.A.
(hereinafter BANA), the servicer of the defendant Juliet
Willis's loan on behalf of the plaintiff. Thompson
averred, in relevant part, that her affidavit was based upon
her review of BANA's business records, and that upon
review of such records, the note was physically transferred
to the plaintiff "in or about March 2007." The
plaintiff failed to demonstrate that the records relied upon
by Thompson were admissible under the business records
exception to the hearsay rule (see CPLR 4518[a])
because Thompson, an employee of BANA, did not attest that
she was personally familiar with the plaintiff's
recordkeeping practices and procedures (see Arch Bay
Holdings, LLC v Albanese, 146 A.D.3d 849; Deutsche
Bank Natl. Trust Co. v Brewton, 142 A.D.3d 683, 685;
Aurora Loan Servs., LLC v Mercius, 138 A.D.3d 650,
the plaintiff failed to establish, prima facie, its
entitlement to judgment as a matter of law on the issue of
standing, we need not consider the sufficiency of
Willis's opposition papers (see Alvarez v Prospect
Hosp., 68 N.Y.2d 320, 324).
Supreme Court erred in granting that branch of the
plaintiff's motion which was for leave to enter a default
judgment against the defendant Premier Real Estate Co., LLC
(hereinafter Premier). To obtain a default judgment against a
corporation which has been served with process pursuant to
Business Corporation Law § 306, a plaintiff must mail an
additional copy of the summons and complaint on the
corporation "at its last known address at least twenty
days before the entry of judgment" (CPLR 3215[g][i]).
Here, the plaintiff's process server's affidavit of
service indicated that the additional mailing pursuant to
CPLR 3215(g)(4)(i) was made to the wrong address, and,
therefore, was not sufficient to show compliance with CPLR
3215(g)(4)(i) (see Bunch v Dollar Budget, Inc., 12
A.D.3d 391, 391-392; Schilling v Maren Enters., 302
A.D.2d 375, 376; Ocuto Blacktop & Paving Co. v
Trataros Constr., 277 A.D.2d 919, 920; Rafa Enters.
v Pigand Mgt. Corp., 184 A.D.2d 329).
parties' remaining contentions are either without merit,
improperly raised for the first time on appeal, or ...