MTGLQ INVESTORS LP v. Department of Housing Preservation and Development, et al., Defendants. (2020)

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about January 30, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff MTGLQ Investors, LP's (MTGLQ) motion for summary judgment on its mortgage foreclosure claim, unanimously affirmed, without costs.

MTGLQ established its entitlement to judgment as a matter of law by showing that it was the holder of the note. At the time this foreclosure action was commenced by MTGLQ's predecessor-in-interest, the note and the written assignment of the note were annexed to the verified summons and complaint. MTGLQ showed that it now holds the note and the mortgage. “A plaintiff proves that it has standing to commence a mortgage foreclosure action by showing that it was both the holder or assignee of the mortgage and the note when the action was commenced” (U.S. Bank N.A. v. Richards, 155 A.D.3d 522, 523, 65 N.Y.S.3d 178 [1st Dept. 2017]). Further, a “written assignment of the note or physical delivery of the note is sufficient to establish standing” (id.).

As for defendant Collado's procedural arguments, the motion court providently exercised its discretion in reviewing the successive motion for summary judgment because MTGLQ set forth “sufficient justification” to move again after the mortgage was assigned to it (see Jones v. 636 Holding Corp., 73 A.D.3d 409, 899 N.Y.S.2d 605 [1st Dept. 2010]). Even if the proper procedure was to move for leave to reargue or renew, the motion court did not improvidently exercise its discretion in reviewing the successive motion for summary judgment “where that motion clearly enhanced judicial efficiency” (Landmark Capital Invs., Inc. v. Li–Shan Wang, 94 A.D.3d 418, 419, 941 N.Y.S.2d 144 [1st Dept. 2012]; see also Coccia v. Liotti, 70 A.D.3d 747, 752, 896 N.Y.S.2d 90 [2d Dept. 2010], lv dismissed 15 N.Y.3d 767, 906 N.Y.S.2d 811, 933 N.E.2d 210 [2010]). Collado's reliance on plaintiff's failure to respond to her notice to admit is insufficient because that discovery device is not properly used “for the purpose of compelling admission of fundamental and material issues or ultimate facts ․” (Meadowbrook–Richman, Inc. v. Cicchiello, 273 A.D.2d 6, 6, 709 N.Y.S.2d 521 [1st Dept. 2000]; see also 32nd Ave, LLC v. Angelo Holding Corp., 134 A.D.3d 696, 698, 20 N.Y.S.3d 420 [1st Dept. 2015]). We have reviewed defendant's additional arguments and find them unavailing.