Deutsch & Schneider, LLP, Glendale, NY (William J.
Fielding of counsel), for appellant.
Lovells US, LLP, New York, NY (Leah Rabinowitz Lenz and Chava
Brandriss of counsel), for respondent.
M. LEVENTHAL, J.P. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Calkula
Properties, Inc., appeals, as limited by its brief, from so
much of an order of the Supreme Court, Kings County (Vaughan,
J.), dated July 9, 2014, as granted those branches of the
plaintiff's motion which were for summary judgment on the
complaint insofar as asserted against it, and for an order of
that the order is affirmed insofar as appealed from, with
2003, the defendant Calkula Properties, Inc. (hereinafter the
defendant), executed a note, secured by a mortgage on real
property owned by it, in which it promised to repay a loan it
received from GFI Mortgage Bankers, Inc. The note was
endorsed to the plaintiff by a "Note Endorsement"
dated December 12, 2008. The plaintiff commenced this action
to foreclose the mortgage in June 2013. In its answer, the
defendant raised the defense of lack of standing to
establish prima facie entitlement to judgment as a matter of
law in a residential mortgage foreclosure action, a plaintiff
must produce the mortgage, the unpaid note, and evidence of
default (see Deutsche Bank Trust Co. Ams. v
Garrison, 147 A.D.3d 725, 726; JPMorgan Chase Bank,
N.A. v Mantle, 134 A.D.3d 903, 904; Deutsche Bank
Natl. Trust Co. v Abdan, 131 A.D.3d 1001, 1002; HSBC
Bank, USA v Hagerman, 130 A.D.3d 683, 683-684). Where,
as here, a plaintiff's standing has been placed in issue
by the defendant's answer, the plaintiff also must prove
its standing as part of its prima facie showing (see
Security Lending, Ltd. v New Realty Corp., 142 A.D.3d
986, 987; JPMorgan Chase Bank, N.A. v Mantle, 134
A.D.3d at 904; Loancare v Firshing, 130 A.D.3d 787,
789; HSBC Bank USA, N.A. v Baptiste, 128 A.D.3d 773,
774). 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 (see Aurora Loan Servs., LLC v
Taylor, 25 N.Y.3d 355, 361-362; Security Lending,
Ltd. v New Realty Corp., 142 A.D.3d at 987; JPMorgan
Chase Bank, N.A. v Mantle, 134 A.D.3d at 904;
Loancare v Firshing, 130 A.D.3d at 789; Emigrant
Bank v Larizza, 129 A.D.3d 904, 905). "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 752, 754; see Aurora Loan Servs., LLC v
Taylor, 25 N.Y.3d at 361-362; Dyer Trust 2012-1 v
Global World Realty, Inc., 140 A.D.3d 827, 828).
the plaintiff established, prima facie, its standing as the
holder of the note by demonstrating, through the affidavit of
its vice president, Kim Barr, that the original note was
physically delivered to the plaintiff in or about December
2008, and was still in its possession at the time it
commenced this action in June 2013. Contrary to the
defendant's contentions, the plaintiff's submissions,
including a copy of the "Note Endorsement" dated
December 12, 2008, were sufficient to make a prima facie
showing of standing (see Aurora Loan Servs., LLC v
Taylor, 25 N.Y.3d at 361-362; Security Lending, Ltd.
v Realty Corp., 142 A.D.3d at 987; Dyer Trust 2012-1
v Global World Realty, Inc., 140 A.D.3d at 828). The
plaintiff further sustained its burden of demonstrating its
prima facie entitlement to judgment as a matter of law by
submitting copies of the mortgage, the note, and an affidavit
of the loan servicer's vice president establishing the
defendant's default in repaying the mortgage loan
(see Deutsche Bank Trust Co. Ams. v Garrison, 147
A.D.3d at 726; JPMorgan Chase Bank, N.A. v Mantle,
134 A.D.3d at 904; Deutsche Bank Natl. Trust Co. v
Abdan, 131 A.D.3d at 1002; HSBC Bank, USA v
Hagerman, 130 A.D.3d at 683-684).
opposition, the defendant failed to raise a triable issue of
fact. Contrary to the defendant's contention, where, as
here, the evidence establishes that the plaintiff had
physical possession of the note at the time of the
commencement of the action, validity of the various
assignments of the mortgage is irrelevant to the issue of
standing (see Aurora Loan Servs., LLC v Taylor, 25
N.Y.3d at 362; New York Community Bank v McClendon,
138 A.D.3d 805, 807; Wells Fargo Bank, N.A. v
Charlaff, 134 A.D.3d 1099, 1100).
defendant's remaining contentions are without merit.
LEVENTHAL, J.P., HINDS-RADIX, LASALLE and BRATHWAITE ...