Opinion
2014-07075, Index No. 12771/11.
05-11-2016
LGF HOLDINGS, LLC, respondent, v. Elliot SKYDEL, et al., appellants, et al., defendants.
William C. House, New York, N.Y. (Laurence Sass of counsel), for appellants. Alan Weinrub, PLLC, Farmingville, N.Y. (Stim & Warmuth, P.C. [Paula J. Warmuth ], of counsel), for respondent.
William C. House, New York, N.Y. (Laurence Sass of counsel), for appellants.
Alan Weinrub, PLLC, Farmingville, N.Y. (Stim & Warmuth, P.C. [Paula J. Warmuth ], of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Opinion In an action to foreclose a mortgage, the defendants Elliot Skydel and Janet R. Skydel appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), dated February 13, 2013, as denied that branch of their cross motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them for lack of standing.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief (see MLCFC 2007–9 Mixed Astoria, LLC v. 36–02 35th Ave. Dev., LLC, 116 A.D.3d 745, 746, 983 N.Y.S.2d 604 ; 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 ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder of, or the assignee of, the underlying note (see Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 19 N.Y.S.3d 543 ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578 ). “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 at 754, 890 N.Y.S.2d 578 ; see Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d 52, 59, 13 N.Y.S.3d 163 ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d at 932, 969 N.Y.S.2d 82 ; Bank of N.Y. v. Silverberg, 86 A.D.3d at 281, 926 N.Y.S.2d 532 ). However, on a defendant's motion for summary judgment, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law (see Flagstar Bank, FSB v. Campbell, 137 A.D.3d 853, 28 N.Y.S.3d 374 ; BAC Home Loans Servicing, LP v. Bixby, 135 A.D.3d 1009, 1010, 22 N.Y.S.3d 664 ; Bank of N.Y. Mellon v. Green, 132 A.D.3d 706, 707, 17 N.Y.S.3d 651 ; U.S. Bank N.A. v. Guy, 125 A.D.3d 845, 847, 5 N.Y.S.3d 116 ; Citibank, N.A. v. Herman, 125 A.D.3d 587, 588–589, 3 N.Y.S.3d 379 ). “The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations made by the plaintiff in the pleadings” (Citibank, N.A. v. Herman, 125 A.D.3d at 589, 3 N.Y.S.3d 379 ).
Here, the appellants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint for lack of standing, since they failed to eliminate questions of fact as to whether the plaintiff had standing by virtue of the physical delivery of the note prior to the commencement of the foreclosure action (see BAC Home Loans Servicing, LP v. Bixby, 135 A.D.3d 1009, 22 N.Y.S.3d 664 ; HSBC Bank USA, N.A. v. Lewis, 134 A.D.3d 764, 20 N.Y.S.3d 618 ; Bank of N.Y. Mellon v. Green, 132 A.D.3d at 707, 17 N.Y.S.3d 651 ; U.S. Bank N.A. v. Pia, 73 A.D.3d 752, 901 N.Y.S.2d 104 ; see also Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 911, 961 N.Y.S.2d 200 ). Accordingly, the Supreme Court properly denied that branch of their cross motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them for lack of standing, regardless of the sufficiency of the opposing papers (see Zarabi v. Movahedian, 136 A.D.3d 895, 26 N.Y.S.3d 153 ; BAC Home Loans Servicing, LP v. Bixby, 135 A.D.3d at 1011, 24 N.Y.S.3d 232 ).