Opinion
2014-03-5
KONDAUR CAPITAL CORPORATION, respondent, v. Rochelle McCARY, appellant, et al., defendant.
Rochelle McCary–Craig, sued herein as Rochelle McCary, Mastic, N.Y., appellant pro se. Lawrence & Walsh, P.C., Hempstead, N.Y. (Eric P. Wainer of counsel), for NS Realty Investors Group, LLC, as successor in interest to Kondaur Capital Corporation.
Rochelle McCary–Craig, sued herein as Rochelle McCary, Mastic, N.Y., appellant pro se. Lawrence & Walsh, P.C., Hempstead, N.Y. (Eric P. Wainer of counsel), for NS Realty Investors Group, LLC, as successor in interest to Kondaur Capital Corporation.
In an action to foreclose a mortgage, the defendant Rochelle McCary appeals from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Farneti, J.), entered December 5, 2012, which, upon an order of the same court dated February 14, 2012, inter alia, granting the plaintiff's motion, among other things, for summary judgment on the complaint and denying her cross motion, inter alia, to dismiss the complaint insofar as asserted against her for lack of standing, and upon confirming a referee's report finding that the sum of $366,406.79 was due upon the mortgage, is in favor of the plaintiff and against her directing a foreclosure and sale of the subject property.
ORDERED that the judgment is affirmed, with costs.
“Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief” ( Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182;see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532;U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced ( see HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120;Bank of N.Y. v. Silverberg, 86 A.D.3d at 279, 926 N.Y.S.2d 532;U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578). The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing “[e]ither a written assignment of the underlying note or the physical delivery of the note” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578;see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609).
Here, in support of that branch of its motion which was for summary judgment on the complaint, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default ( see Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82;GRP Loan, LLC v. Taylor, 95 A.D.3d 1172, 945 N.Y.S.2d 336). The plaintiff also established that it had standing as the holder of the note and mortgage by submitting the written mortgage assignments and the affidavit of the plaintiff's president, which established that it had physical possession of the note prior to commencement of this action ( see Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d at 932, 969 N.Y.S.2d 82 ; Marcon Affiliates, Inc. v. Ventra, 112 A.D.3d 1095, 977 N.Y.S.2d 438;cf. Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 969 N.Y.S.2d 470). In opposition, the defendant Rochelle McCary failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint.
The parties' remaining contentions either are without merit or need not be addressed in light of our determination. MASTRO, J.P., RIVERA, SGROI and COHEN, JJ., concur.