Submitted - September 20, 2019
M. Harrison, Brooklyn, NY, for appellants.
Lovells U.S. LLP, New York, NY (Leah Edmunds, Lisa J. Fried,
and Chava Brandriss of counsel), for respondent.
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL, ANGELA G.
IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendants Karla A.
Olivier and Dana Reeves Carter appeal from an order of the
Supreme Court, Kings County (Noach Dear, J.), dated May 16,
2016. 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 those
defendants and for an order of reference, and denied that
branch of those defendants' cross motion which was for
leave to amend their answer to assert the affirmative defense
of lack of standing.
that the order is affirmed insofar as appealed from, with
plaintiff commenced this mortgage foreclosure action by the
filing of a summons and complaint on February 27, 2014.
Following joinder of issue by the defendants Karla A. Olivier
and Dana Reeves Carter (hereinafter together the defendants),
the plaintiff moved, among other things, for summary judgment
on the complaint insofar as asserted against the defendants
and for an order of reference, and the defendants cross-moved
for leave to amend their answer, inter alia, to assert the
affirmative defense of lack of standing. In an order dated
May 16, 2016, the Supreme Court determined that the plaintiff
had standing to bring the action, granted those branches of
the plaintiff's motion, and denied that branch of the
defendants' cross motion. The defendants appeal.
plaintiff in a mortgage foreclosure action establishes its
standing by demonstrating that "it was the holder or
assignee of the underlying note at the time the action was
commenced" (US Bank N.A. v Nelson, 169 A.D.3d
110, 114; see Wells Fargo Bank, N.A. v Frankson, 157
A.D.3d 844, 845). "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 355, 361; Bank of
N.Y. v Silverberg, 86 A.D.3d 274, 280).
the plaintiff established, prima facie, that it had standing
to prosecute this action by demonstrating that the original
note, endorsed in blank, a true copy of which was annexed to
the complaint, was in its possession at the time it commenced
the action (see Central Mtge. Co. v Canas, 173
A.D.3d 967, 968-969; U.S. Bank N.A. v Clement, 163
A.D.3d 742, 743-744; Wells Fargo Bank, N.A. v
Frankson, 157 A.D.3d at 845; U.S. Bank N.A. v
Saravanan, 146 A.D.3d 1010, 1011; JPMorgan Chase
Bank, N.A. v Weinberger, 142 A.D.3d 643, 644). The
plaintiff further sustained its burden of demonstrating its
prima facie entitlement to judgment as a matter of law by
submitting the mortgage, the note, and proof of default in
the repayment of the obligation (see Wells Fargo Bank,
N.A. v Gonzalez, 174 A.D.3d 555, 557; Deutsche Bank
Natl. Trust Co. v Cardona, 172 A.D.3d 1313, 1315). In
opposition, the defendants failed to raise a triable issue of
fact, as their arguments regarding the validity of the
assignments of mortgage were insufficient for that purpose.
Accordingly, we agree with the Supreme Court's
determination granting those branches of the plaintiff's
motion which were for summary judgment on the complaint
insofar as asserted against the defendants and for an order
of the foregoing determination, the defendants' remaining