BANK NATIONAL ASSOCIATION v. Environmental Control Board of the City of New York et al., Defendants. (2024)

Order and judgment (one paper), Supreme Court, New York County (Robert R. Reed, J.), entered on or about November 13, 2023, in plaintiff's favor, and bringing up for review an order, same court and Justice, entered on or about October 16, 2023, which granted plaintiff's motion for summary judgment and an order of reference, unanimously affirmed, with costs.  Appeal from aforementioned order, unanimously dismissed, without costs, as subsumed in the appeal from the order and judgment.

In this mortgage foreclosure action, plaintiff established prima facie that it had standing to foreclose (see 5AIF Sycamore 2, LLC v. 201 EB Dev. III, 223 A.D.3d 550, 550, 202 N.Y.S.3d 103 [1st Dept. 2024]).  The subject note, and the allonges attached to each note, which were dated and specifically indorsed to each respective assignee, were sufficient to establish plaintiff's standing (see id. at 550–551, 202 N.Y.S.3d 103, citing U.S. Bank N.A. v. Moulton, 179 A.D.3d 734, 737, 116 N.Y.S.3d 86 [2d Dept. 2020]).

Defendants, in turn, failed to raise a triable issue of fact as to standing.  Uniform Commercial Code § 3–202(2) provides that “[a]n endorsement must be written by or on behalf of the holder on the instrument or on a paper so firmly affixed thereto as to become a part thereof.”  Contrary to defendants’ contention, counsel's sworn affidavit of regularity, in which he averred that upon receipt of the original trust file, the file contained the original note and mortgage, that the original allonges were stapled to the original note, and the original trust file containing the original note and mortgage remained in counsel's possession and would be provided upon request, was sufficient to meet this burden (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  see also U.S Bank N.A. v. Garcia, 183 A.D.3d 506, 507, 124 N.Y.S.3d 666 [1st Dept. 2020]).

Contrary to defendants’ argument, plaintiff was required to name the guarantors as defendants in order to preserve any “bad boy” event resulting in a deficiency claim against them (see LBUBS 2005–C2 New York Retail, LLC v. AC I Southwest Broadway LLC, 2013 WL 1796712 [Sup. Ct., N.Y. County 2013]).

Defendants’ argument that plaintiff's motion for summary judgment was premature, because relevant discovery within plaintiff's control remains outstanding, is unavailing.  Defendants failed to make any showing that discovery could have resulted in material facts that would enable them to prevail on their claims (see Island Fed. Credit Union v. I & D Hacking Corp., 194 A.D.3d 482, 143 N.Y.S.3d 538 [1st Dept. 2021]), particularly as they failed to respond to a briefing schedule that could have provided further information.

We have considered defendants’ remaining arguments and find them unavailing.