Submitted - November 2, 2017
Jeffrey I. Klein, White Plains, NY, for appellants.
Boriskin, LLC (Druckman Law Group PLLC, Westbury, NY [Lisa M.
Browne and Paul Bierman], of counsel), for respondent.
REINALDO E. RIVERA, J.P. JEFFREY A. COHEN SYLVIA O.
HINDS-RADIX VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
from a decision of the Supreme Court, Westchester County
(Linda S. Jamieson, J.), dated May 27, 2016, and an order of
that court, also dated May 27, 2016. The order, insofar as
appealed from, upon the decision, granted those branches of
the plaintiffs motion which were for summary judgment on the
complaint insofar as asserted against the defendants Kenneth
Berino and Eva Berino, to strike their answer, and for the
appointment of a referee to compute the amount due under a
note and mortgage, and, in effect, denied those
defendants' cross motion for summary judgment dismissing
the complaint insofar as asserted against them.
that the appeal from the decision is dismissed, without costs
or disbursements, as no appeal lies from a decision (see
Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509);
and it is further, ORDERED that the order is modified, on the
law, by deleting the provisions thereof granting those
branches of the plaintiffs motion which were for summary
judgment on the complaint insofar as asserted against the
defendants Kenneth Berino and Eva Berino, to strike their
answer, and for the appointment of a referee to compute the
amount due under the note and mortgage, and substituting
therefor provisions denying those branches of the motion; as
so modified, the order is affirmed insofar as appealed from,
without costs or disbursements.
March 2003, the defendants Kenneth Berino and Eva Berino
(hereinafter together the Berino defendants) borrowed the sum
of $322, 700 from IndyMac Bank, F.S.B. (hereinafter IndyMac).
The loan was memorialized by a note and secured by a mortgage
on certain real property in New Rochelle. The Berino
defendants allegedly defaulted on the loan by failing to make
the payment due on June 1, 2010. Thereafter, the Federal
Deposit Insurance Corporation (hereinafter the FDIC), as
receiver for IndyMac Federal Bank, FSB, successor by merger
to IndyMac, assigned the mortgage, together with the note, to
OneWest Bank, FSB (hereinafter OneWest).
February 2011, OneWest commenced an action to foreclose the
mortgage against, among others, the Berino defendants. The
Berino defendants interposed an answer, and moved, inter
alia, for summary judgment dismissing the complaint insofar
as asserted against them for lack of standing. In an order
dated September 4, 2012, the Supreme Court granted that
branch of the Berino defendants' motion.
2013, OneWest commenced this action to foreclose the same
mortgage. After the Berino defendants joined issue, OneWest
moved, inter alia, for summary judgment on the complaint
insofar as asserted against them, to strike their answer, and
for the appointment of a referee to compute the amount due.
The Berino defendants opposed the motion, and cross-moved for
summary judgment dismissing the complaint insofar as asserted
against them, inter alia, for lack of standing. The Supreme
Court granted those branches of OneWest's motion and
denied the Berino defendants' cross motion. The Berino
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" (Plaza Equities, LLC v.
Lamberti, 118 A.D.3d 688, 689). Additionally,
"[w]here, as here, standing is put into issue by a
defendant, the plaintiff must prove its standing in order to
be entitled to relief" (Aurora Loan Servs., LLC v.
Taylor, 114 A.D.3d 627, 628 [internal quotation marks
omitted], affd 25 N.Y.3d 355). A plaintiff in a
mortgage foreclosure action has standing where it is the
holder or assignee of the underlying note at the time the
action is commenced (see Aurora Loan Servs., LLC v.
Taylor, 25 N.Y.3d at 361; U.S. Bank N.A. v.
Handler, 140 A.D.3d 948, 949). "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).
OneWest failed to meet its prima facie burden of establishing
that it had standing as the holder or assignee of the note at
the time it commenced the action (see Wells Fargo Bank,
N.A. v. Talley, 153 A.D.3d 583, 584; Arch Bay
Holdings, LLC v. Albanese, 146 A.D.3d 849, 852). In
support of its motion, OneWest submitted the affidavit of
Jillian Thrasher, an employee of its loan servicer, who
averred that OneWest was the holder of the note, which is
endorsed in blank, and assignee of the mortgage at the time
the action was commenced. However, OneWest failed to
demonstrate the admissibility of the records that Thrasher
relied upon under the business records exception to the
hearsay rule (see CPLR 45l8[a]), since she did not attest
that she was personally familiar with OneWest's
record-keeping practices and procedures (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 at
949; Aurora Loan Servs., LLC v. Mercius, 138 A.D.3d
650, 652). Insofar as the Supreme Court reached its
determination that OneWest had standing by, sua sponte,
''independently tak[ing] judicial notice of the FDIC
website, " this Court has repeatedly cautioned against
such independent Internet investigations, especially when
conducted without providing notice or an opportunity for the
parties to be heard (see First United Mtg. Banking Corp.
v. Lawani, 147 A.D.3d 912, 913; HSBC Bank USA, N.A.
v. Taher, 104 A.D.3d 815, 818). Since OneWest failed to
meet its prima facie burden, the court should have denied the
subject branches of its motion without regard to the
sufficiency of the Berino defendants' opposition papers
(see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
the Supreme Court properly denied the Berino defendants'
cross motion for summary judgment dismissing the complaint
insofar as asserted against them for lack of standing, as
they failed to make a prima facie showing that OneWest lacked
standing (see Filan v. Dellaria,144 ...