HSBC Bank USA
v.
Spitzer

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Second Department, New York.Sep 30, 2015
18 N.Y.S.3d 67 (N.Y. App. Div. 2015)
18 N.Y.S.3d 67131 A.D.3d 12062015 N.Y. Slip Op. 7008

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2015-09-30

HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Sharona SPITZER, et al., appellants, et al., defendants.

Jeremy Rosenberg, New York, N.Y., for appellants. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Sean M. Marotta of counsel), for respondent.



Jeremy Rosenberg, New York, N.Y., for appellants. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Sean M. Marotta of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.


In an action to foreclose a mortgage, the defendants Sharona Spitzer and Eliyahu Spitzer, also known as Eliot Spitzer, appeal from (1) an order of the Supreme Court, Rockland County (Loehr, J.), entered January 31, 2013, which granted the plaintiff's motion, inter alia, for summary judgment on the complaint and dismissing their affirmative defenses, and for an order of reference, and (2) an order of the same court, also entered January 31, 2013, which, among other things, directed the dismissal of their affirmative defenses and appointed a referee to determine the amount due to the plaintiff.

ORDERED that the orders are affirmed, with one bill of costs.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce “the mortgage, the unpaid note, and evidence of default” (Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548). “Where, as here, standing is put into issue by a defendant, ‘the plaintiff must prove its standing in order to be entitled to relief’ ” (Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475, affd.25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, quoting U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578). A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced ( see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82, quoting Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532).

Contrary to the defendants' contention, the Supreme Court did not err in concluding that the plaintiff established standing to commence this foreclosure action, as the affidavit of Leon Mirasol, a vice president of loan documentation for the plaintiff's loan servicer, established that the plaintiff had physical possession of the note at the time the action was commenced ( see Aurora Loan Services, LLC v. Taylor, 25 N.Y.3d 979, 9 N.Y.S.3d 172, 31 N.E.3d 588; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 995 N.Y.S.2d 118; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 981 N.Y.S.2d 547).

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 the affidavit of Mirasol, attesting to the default of the defendants Sharona Spitzer and Eliyahu Spitzer, also known as Eliot Spitzer, in the repayment of their mortgage loan obligation ( see Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 964 N.Y.S.2d 548). In opposition, the Spitzers failed to raise a triable issue of fact. Although the defendant AJ Mendel Group, Inc., appeared in the action, it did not oppose the motion. The remaining defendants failed to appear in the action.

Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, for summary judgment on the complaint and dismissing the appellants' affirmative defenses, and for an order of reference.