Felton, Brooklyn, NY, for appellant.
Leitman Bailey, P.C., New York, NY (Jackie Halpern Weinstein
of counsel), and Fidelity National Law Group, New York, NY
(Daniel A. Womac and Hilary R. Levine of counsel), for
respondent (one brief filed).
M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Brett Jones
appeals from an order of the Supreme Court, Kings County
(Lewis, J.), dated March 20, 2015, which granted the
plaintiff's motion pursuant to CPLR 4401, made at the
close of evidence, for judgment as a matter of law against
that the order is affirmed, with costs.
2004, the defendant Brett Jones borrowed the sum of $337, 455
from Option One Mortgage Corporation. The loan was secured by
a mortgage on the subject property (hereinafter the Option
One mortgage). Two years later, after defaulting on the
Option One mortgage, Jones turned to MAI Management and
Redemption, LLC (hereinafter MAI), for help in avoiding
foreclosure. MAI located the defendant Kirk Gibson, who, for
a fee, agreed to purchase the subject property from Jones and
obtain a new mortgage to finance the purchase.
closing on November 13, 2006, a portion of the proceeds was
used to pay off the Option One mortgage, and a satisfaction
of mortgage discharging the Option One mortgage was issued.
Gibson obtained two loans from the defendant Premium Capital
Funding, LLC, doing business as TopDot Mortgage (hereinafter
TopDot), in the amounts of $524, 000 and $131, 000,
respectively. The larger loan was secured by a first mortgage
on the subject property (hereinafter the TopDot mortgage),
and the smaller loan was secured by a second mortgage.
subsequently defaulted on his mortgage payments, and the
plaintiff, as successor-in-interest to TopDot, commenced this
action in 2008 to foreclose the TopDot mortgage. Jones
answered the complaint, asserting, inter alia, affirmative
defenses that the plaintiff lacked standing, that the Option
One mortgage was not paid off, and that the plaintiff was
"perpetuating the fraud perpetrated upon [him], "
as well as a counterclaim alleging that the deed by which
Jones conveyed the subject property to Gibson was a forgery.
nonjury trial, the plaintiff offered the testimony of Nathan
Musick, an assistant vice president of Bank of America
National Association (hereinafter Bank of America). In
relevant part, Musick testified that he is the authorized
custodian of the original note relating to the TopDot
mortgage, which has been kept in the regular course of Bank
of America's business. Musick further confirmed, based on
information contained in a database created by the plaintiff
and transferred to Bank of America when the plaintiff was
absorbed by merger into Bank of America's corporate
structure, that the plaintiff took possession of the original
note on November 28, 2006, before this action was commenced.
plaintiff also offered the testimony of Steven Vasco, the
notary public who witnessed the signatures of Jones and
Gibson on the November 13, 2006, deed transferring the
subject property to Gibson. Although Vasco had no independent
recollection of the closing, he confirmed his signature and
notary stamp on the deed, and explained the procedure he
usually follows in verifying the identity of signatories.
testified on his own behalf. In relevant part, he conceded
that the grantor's signature appearing on the November
13, 2006, deed "look[ed] like" his, but maintained
that he "would never sell [his] home" or "give
[his] home away." He acknowledged receiving $56, 675.82
from the 2006 refinancing transaction, and confirmed that,
after the refinancing, he never again received another
invoice or demand regarding the Option One mortgage.
close of evidence, the plaintiff moved pursuant to CPLR 4401
for judgment as a matter of law against Jones. The court
granted the motion, and Jones appeals.
reviewing a determination made after a nonjury trial, this
Court's power is as broad at that of the trial court, and
this Court may render the judgment it finds warranted by the
facts, taking into account that, in a close case, the trial
court had the advantage of seeing and hearing the witnesses
(see Northern Westchester Professional Park Assoc. v Town
of Bedford, 60 N.Y.2d 492, 499; International
Exterior Fabricators, LLC v Decoplast, Inc., 128 A.D.3d
party may move for judgment with respect to a cause of action
or issue upon the ground that the moving party is entitled to
judgment as a matter of law, after the close of the evidence
presented by an opposing party with respect to such cause of
action or issue" (CPLR 4401). "A trial court's
grant of a CPLR 4401 motion for judgment as a matter of law
is appropriate where the trial court finds that, upon the
evidence presented, there is no rational process by which the
fact trier could base a finding in favor of the nonmoving
party" (Szczerbiak v Pilat,90 N.Y.2d 553, 556;
see Geeta Temple-Ashram v Satyanandji, 142 A.D.3d
1132, 1134). In considering such a motion, the trial court
must afford the nonmoving ...