Cenlar FSBv.Lanzbom

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial DepartmentJan 9, 2019
90 N.Y.S.3d 285 (N.Y. App. Div. 2019)
90 N.Y.S.3d 285168 A.D.3d 6702019 N.Y. Slip Op. 92

2016–06312 Index No. 33492/14

01-09-2019

CENLAR FSB, Appellant, v. Cindy LANZBOM, Respondent, et al., Defendant.

Houser & Allison, APC, New York, N.Y. (Jacqueline Aiello and Kathleen Massimo of counsel), for appellant. The Schwartz Law Group, P.C., Bethpage, N.Y. (Kenneth B. Schwartz of counsel), for respondent.


Houser & Allison, APC, New York, N.Y. (Jacqueline Aiello and Kathleen Massimo of counsel), for appellant.

The Schwartz Law Group, P.C., Bethpage, N.Y. (Kenneth B. Schwartz of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDERORDERED that the order is reversed, on the law, with costs, that branch of the cross motion of the defendant Cindy Lanzbom which was for summary judgment dismissing the complaint insofar as asserted against her for lack of standing is denied, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings in accordance herewith.

In November 2002, Cindy Lanzbom (hereinafter the defendant) executed a note in the sum of $300,000 in favor of HSBC Mortgage Corporation (USA) (hereinafter HSBC), which was secured by a mortgage on certain property located in Pomona (hereinafter the first mortgage). In May 2004, the defendant executed a second note in the sum of $9,520 in favor of Fairmont Funding, Ltd., which was secured by a mortgage on the same property (hereinafter the second mortgage). The defendant also executed a consolidated note and a consolidation, extension, and modification agreement, creating a single lien in the sum of $305,000. On May 27, 2004, HSBC recorded a satisfaction of the first mortgage.

In July 2014, the plaintiff, the assignee of the first and second mortgages, commenced this action, inter alia, to cancel and vacate the satisfaction of mortgage. The defendant interposed an answer with various affirmative defenses, including the plaintiff's alleged lack of standing to commence this action. In January 2016, the plaintiff moved, inter alia, for summary judgment on the complaint and to strike the defendant's answer. The defendant opposed the motion and cross-moved, inter alia, pursuant to CPLR 3025(b) for leave to amend her answer to add a statute of limitations defense, and for summary judgment dismissing the complaint insofar as asserted against her for lack of standing. In the order appealed from, the Supreme Court granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against her for lack of standing. The court did not address those branches of the plaintiff's motion which were for summary judgment on the complaint and to strike the defendant's answer, or that branch of the defendant's cross motion which was pursuant to CPLR 3025(b) for leave to amend her answer to add a statute of limitations defense. The plaintiff appeals.

"On a motion for summary judgment, ‘the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied’ " ( Deutsche Bank Natl. Trust Co. v. Homar, 163 A.D.3d 522, 523, 80 N.Y.S.3d 409, quoting Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d 52, 59–60, 13 N.Y.S.3d 163 ; see Citicorp Mtge. v. Adams, 153 A.D.3d 779, 780, 60 N.Y.S.3d 337 ). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law" ( Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d at 60, 13 N.Y.S.3d 163 ; see Deutsche Bank Natl. Trust Co. v. Homar, 163 A.D.3d at 523, 80 N.Y.S.3d 409 ). Here, the defendant merely pointed to alleged gaps in the plaintiff's case and failed to meet her burden of establishing, prima facie, the plaintiff's lack of standing as a matter of law (see Deutsche Bank Natl. Trust Co. v. Homar, 163 A.D.3d at 523–524, 80 N.Y.S.3d 409 ).

The defendant's remaining contentions are without merit.

Accordingly, since the defendant failed to establish her prima facie entitlement to judgment as a matter of law, that branch of her cross motion which was for summary judgment dismissing the complaint insofar as asserted against her for lack of standing should have been denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

In light of the Supreme Court's determination as to the plaintiff's lack of standing, the court did not consider the merits of those branches of the plaintiff's motion which were for summary judgment on the complaint and to strike the defendant's answer, or that branch of the defendant's cross motion which was pursuant to CPLR 3025(b) for leave to amend her answer to add a statute of limitations defense. Therefore, we remit the matter to the Supreme Court, Rockland County, for a determination of those branches of the plaintiff's motion and the defendant's cross motion on the merits (see Deutsche Bank Natl. Trust Co. v. Martin, 134 A.D.3d 665, 665–666, 19 N.Y.S.3d 777 ).

DILLON, J.P., ROMAN, MILLER and DUFFY, JJ., concur.