Opinion
2013-11361, Index No. 51194/12.
05-11-2016
ONE WEST BANK, FSB, respondent, v. Nicholas F. ALBANESE III, also known as Nicholas Albanese, et al., defendants, Debora M. Albanese, appellant.
The Law Firm of Daniel M. Miller, PLLC, Mahopac, NY, for appellant.
The Law Firm of Daniel M. Miller, PLLC, Mahopac, NY, for appellant.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the defendant Debora M. Albanese appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Connolly, J.), dated September 10, 2013, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her, to strike her answer, and to appoint a referee to compute the amount due to the plaintiff.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
“Generally, 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, 986 N.Y.S.2d 843 ; see Wells Fargo Bank, N.A. v. Charlaff, 134 A.D.3d 1099, 24 N.Y.S.3d 317 ). “Where, as here, the plaintiff's standing to commence the action is placed in issue by a defendant, the plaintiff must ultimately establish its standing to be entitled to relief” (Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 842, 7 N.Y.S.3d 147 ; see Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 981, 19 N.Y.S.3d 543 ; HSBC Bank USA, N.A. v. Baptiste, 128 A.D.3d 773, 774, 10 N.Y.S.3d 255 ). “A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced” (LNV Corp. v. Francois, 134 A.D.3d 1071, 1072, 22 N.Y.S.3d 543 ; see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ).
Here, the plaintiff established its entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the appellant's default (see W & H Equities LLC v. Odums, 113 A.D.3d 840, 841, 978 N.Y.S.2d 910 ; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902 ). Further, the plaintiff submitted an affidavit of its assistant secretary, who stated that the note, endorsed in blank, was physically delivered to the plaintiff on March 19, 2009. Through this affidavit, the plaintiff established, prima facie, that it had standing to prosecute this action because it had physical possession of the note prior to the January 2012 commencement of the action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d at 981, 19 N.Y.S.3d 543 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1207, 18 N.Y.S.3d 67 ). In opposition, the appellant failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellant, to strike the appellant's answer, and to appoint a referee to compute the amount due to the plaintiff.