B. Gilbert, Middletown, NY, for appellant.
Knuckles Komosinski & Manfro, LLP, Elmsford, NY (Michel
Lee of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, BETSY BARROS,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Orange County (Nicholas
DeRosa, J.), dated September 4, 2015. The order, insofar as
appealed from, granted those branches of the plaintiff's
motion which were for summary judgment on the complaint
insofar as asserted against the defendant Melvin P. Talley
and for an order of reference, and denied that branch of the
defendant Melvin P. Talley's cross motion which was for
summary judgment dismissing the complaint insofar as asserted
against him for lack of standing.
that the order is modified, on the law, by deleting the
provisions thereof granting those branches of the
plaintiff's motion which were for summary judgment on the
complaint insofar as asserted against the defendant Melvin P.
Talley and for an order of reference, and substituting
therefor a provision denying those branches of the motion; as
so modified, the order is affirmed insofar as appealed from,
with costs to the defendant Melvin P. Talley.
November 2006, Melvin P. Talley (hereinafter the defendant)
borrowed the sum of $133, 200 from Castle Point Mortgage
(hereinafter Castle Point). The loan was evidenced by a note
and secured by a mortgage in favor of Mortgage Electronic
Registration Systems, Inc. (hereinafter MERS), acting solely
as nominee for Castle Point, encumbering real property in
Middletown, New York. The defendant allegedly defaulted under
the note by failing to make the installment payment due on
July 1, 2009, and the monthly installment payments
thereafter. Subsequently, in two written assignments, both
dated March 31, 2010, the mortgage, "together with [the]
note or notes therein described or referred to, "
allegedly were assigned by MERS, as nominee for Castle Point,
to ACT Properties, LLC (hereinafter ACT), and from ACT to the
December 2012, the plaintiff commenced this action to
foreclose the mortgage. The defendant joined issue by service
of an answer in which he generally denied the allegations and
asserted various affirmative defenses, including lack of
standing. After a mandatory foreclosure settlement
conference, the plaintiff moved, inter alia, for summary
judgment on the complaint insofar as asserted against the
defendant and for an order of reference. The defendant
opposed the motion and cross-moved for summary judgment
dismissing the complaint insofar as asserted against him on
the ground, among others, of lack of standing. In an order
dated September 4, 2015, the Supreme Court granted the motion
and denied the cross motion. The defendant appeals.
in moving for summary judgment in an action to foreclose a
mortgage, a plaintiff establishes its prima facie case
through the production of the mortgage, the unpaid note, and
evidence of default" (Deutsche Bank Natl. Trust Co.
v Abdan, 131 A.D.3d 1001, 1002 [internal quotation marks
omitted]; see Hudson City Sav. Bank v Genuth, 148
A.D.3d 687). Where a plaintiff's standing to commence a
foreclosure action is placed in issue by a defendant, it is
incumbent upon the plaintiff to prove its standing to be
entitled to relief (see Deutsche Bank Trust Co. Ams. v
Garrison, 147 A.D.3d 725; Wells Fargo Bank, N.A. v
Arias, 121 A.D.3d 973, 973-974). 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; U.S. Bank, N.A. v Noble, 144 A.D.3d 786;
U.S. Bank, N.A. v Collymore, 68 A.D.3d 752,
753-754). Either a written assignment of the underlying note
or the physical delivery of the note is sufficient to
transfer the obligation, and the mortgage passes with the
debt as an inseparable incident (see Deutsche Bank Trust
Co. Ams. v Garrison, 147 A.D.3d at 725; U.S. Bank
N.A. v Saravanan, 146 A.D.3d 1010, 1011; Deutsche
Bank Natl. Trust Co. v Logan, 146 A.D.3d 861, 862).
the plaintiff failed to meet its prima facie burden of
establishing its standing (see Arch Bay Holdings, LLC v
Albanese, 146 A.D.3d 849). In support of its motion, the
plaintiff submitted the affidavit of Selena Mitcherson, a
vice president of the plaintiff's loan servicer.
Mitcherson averred, based upon her review of the loan
servicer's business records, that "prior [to]
commencement and at all times thereafter, " the
plaintiff remained in possession of the original promissory
note, which bears an indorsement payable to the
plaintiff's order and was "delivered to it, or its
agent, on or about March 31, 2010." However, the
plaintiff failed to demonstrate the admissibility of the
records relied upon by Mitcherson under the business records
exception to the hearsay rule (see CPLR 4518[a]),
since Mitcherson did not attest that she was personally
familiar with the record-keeping practices and procedures of
the plaintiff (see Arch Bay Holdings, LLC v
Albanese, 146 A.D.3d at 853; Aurora Loan Serv., LLC
v Baritz, 144 A.D.3d 618, 620; Deutsche Bank Natl.
Trust Co. v Brewton, 142 A.D.3d 683, 685; U.S. Bank
N.A. v Handler, 140 A.D.3d 948, 949; Aurora Loan
Servs., LLC v Mercius, 138 A.D.3d 650, 652). The
plaintiff also failed to establish standing based upon the
purported assignment of the note and mortgage from MERS to
ACT, and then from ACT to the plaintiff. The record is devoid
of proof of delivery or assignment of the note to MERS prior
to its execution of the assignment to ACT (see Arch Bay
Holdings, LLC v Albanese, 146 A.D.3d at 853; Aurora
Loan Servs., LLC v Mercius, 138 A.D.3d at 652; HSBC
Bank USA, N.A. v Roumiantseva, 130 A.D.3d 983, 984).
Since the plaintiff failed to meet its prima facie burden,
the Supreme Court should have denied those branches of its
motion which were for summary judgment on the complaint
insofar as asserted against the defendant, and for an order
of reference, without regard to the sufficiency of the
defendant's opposition papers (see Alvarez v Prospect
Hosp., 68 N.Y.2d 320, 324).
the Supreme Court properly denied that branch of the
defendant's cross motion which was for summary judgment
dismissing the complaint insofar as asserted against him for
lack of standing. "[T]he burden is on the moving
defendant to establish, prima facie, the plaintiff's lack
of standing, rather than on the plaintiff to affirmatively
establish its standing in order for the motion to be denied.
To defeat a defendant's motion, the plaintiff has no
burden of establishing its standing as a matter of law"
(Deutsche Bank Trust Co. Ams. v Vitellas, 131 A.D.3d
52, 59-60 [citations omitted]). Here, on his cross motion,
the defendant failed to ...