35070 15E LLC 2005 FR4 2005 FR4 v. Mbaye Ndiaye, Defendant–Respondent, United States of America, et al., Defendants. (2017)

Supreme Court, Appellate Division, First Department.

Wells Fargo Bank, N.A., as Trustee Index 35070/15E for Securitized Asset Backed Receivables, LLC Trust 2005–FR4 Mortgage Pass–Through Certificates, Series 2005–FR4, Plaintiff–Appellant, v. Mbaye Ndiaye, Defendant–Respondent, United States of America, et al., Defendants.

2875

Decided: January 26, 2017

Acosta, J.P., Mazzarelli, Feinman, Webber, JJ.

Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), for appellant. Stella Azie, Bronx, for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 9, 2015, which granted the motion of defendant Mbaye Ndiaye to dismiss the complaint as against him with prejudice, unanimously reversed, on the law, without costs and the motion denied.

The dismissals of plaintiff's prior actions without prejudice premised on lack of standing were not dismissals on the merits for res judicata purposes (see Tico, Inc. v. Borrok, 57 AD3d 302 [1st Dept 2008] ). Despite the purportedly invalid assignment of the note to plaintiff, plaintiff may nevertheless establish its standing by demonstrating that the note was in its possession or that it was delivered prior to the commencement of this action (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361–362 [2015] ).

CLERK

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