MTGLQ INVESTORS v. City of New York Environmental Control Board, et al., Defendants. (2021)

Order and judgment (one paper), Supreme Court, New York County (Lynn R. Kotler, J.), entered September 24, 2019, which granted plaintiff's motion for final judgment of foreclosure and sale and denied defendant's motion to vacate, unanimously affirmed, with costs.

Plaintiff MTGLQ Investors, L.P. established prima facie entitlement to summary judgment in this foreclosure action.  MTGLQ established standing to bring the action by showing that its predecessor in interest had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of the note to the summons and complaint at the time the action was commenced (see MTGLQ Invs., L.P. v. Collado, 183 A.D.3d 414, 123 N.Y.S.3d 589 [1st Dept. 2020];  see also Deutsche Bank Natl. Trust Co. v. Umeh, 145 A.D.3d 497, 41 N.Y.S.3d 882 [1st Dept. 2016] ).  MTGLQ also submitted an affidavit of a vice president of its loan servicer, Rushmore Loan Management Services, LLC, who averred that MTGLQ was the current holder of the note under an assignment executed in December 2014 (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ).

Defendant's attempts to attack the affidavits submitted in support of plaintiff's motion and his claims of fraud, forgery, and improper assignment are unavailing.  To begin, defendant is precluded from supporting his arguments with the evidence that this Court had previously excluded in Amtrust–NP SFR Venture, LLC v. Vazquez, 140 A.D.3d 541, 32 N.Y.S.3d 497 (1st Dept. 2016) (see Kenney v. City of New York, 74 A.D.3d 630, 630–631, 903 N.Y.S.2d 53 [1st Dept. 2010], citing J–Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 A.D.3d 809, 809, 847 N.Y.S.2d 130 [2007] ).  In any event, defendant failed to make more than a bald assertion that the signatures on the note and mortgage are forgeries (Banco Popular N. Am. v. Victory Taxi Mgt., 1 N.Y.3d 381, 384, 774 N.Y.S.2d 480, 806 N.E.2d 488 [2004];  cf. Millennium BCPBank, N.A. v. Kal–Pak Realty, LLC, 99 A.D.3d 976, 953 N.Y.S.2d 132 [2d Dept. 2012] ).  Moreover, defendant's signature on the mortgage was notarized, and he failed to rebut the presumption that this signature is, thus, genuine (see Seaboard Sur. Co. v. Earthline Corp., 262 A.D.2d 253, 692 N.Y.S.2d 375 [1st Dept. 1999] ).  Finally, defendant had ratified the debt by making payments on the mortgage for over one year without any apparent protest (see Confidential Lending, LLC v. Nurse, 120 A.D.3d 739, 992 N.Y.S.2d 77 [2d Dept. 2014] ).  Defendant's other arguments regarding plaintiff's ownership of the note are undermined by the affidavit of MTGLQ's loan servicer and the assignments contained in the record.