BANK NATIONAL ASSOCIATION v. FABBRO (2021)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Maria Fabbro appeals from (1) two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated June 18, 2018, and (2) an order of the same court dated January 31, 2019.  The first order dated June 18, 2018, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Maria Fabbro, to strike her answer, and for an order of reference, and denied that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against her for lack of standing.  The second order dated June 18, 2018, insofar as appealed from, granted and denied the same relief and appointed a referee to compute the amount due to the plaintiff.  The order dated January 31, 2019, denied that defendant's motion for leave to renew and reargue her opposition to the plaintiff's prior motion, inter alia, for summary judgment on the complaint insofar as asserted against her, and her prior cross motion for summary judgment dismissing the complaint insofar as asserted against her, which were determined in the orders dated June 18, 2018.

ORDERED that the orders dated June 18, 2018, are affirmed insofar as appealed from;  and it is further,

ORDERED that the appeal from so much of the order dated January 31, 2019, as denied that branch of the motion of the defendant Maria Fabbro which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated January 31, 2019, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

“ ‘Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ ” (Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843).  Additionally, where a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see 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;  Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25;  Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247).  A plaintiff has standing in a mortgage foreclosure action when 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 at 361, 12 N.Y.S.3d 612, 34 N.E.3d 363;  Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25).  “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578;  see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363).

Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting copies of the mortgage, the note, and evidence of the default of the defendant Maria Fabbro (see U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547).  Additionally, the plaintiff established its standing to commence the action by demonstrating that it had physical possession of the note prior to the commencement of the action, as evidenced by its attachment of a certified copy of the original note, endorsed in blank, to the summons and complaint (see U.S. Bank Trust, N.A. v. Porter, 175 A.D.3d 530, 532, 107 N.Y.S.3d 52).  In opposition, Fabbro failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Fabbro, to strike her answer, and for an order of reference, and denied Fabbro's cross motion for summary judgment dismissing the complaint insofar as asserted against her for lack of standing.

Furthermore, the Supreme Court providently exercised its discretion in denying that branch of Fabbro's motion which was for leave to renew.  A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2];  Bukhtiyarova v. Cohen, 172 A.D.3d 1153, 1155–1156, 102 N.Y.S.3d 57;  Phoenix Grantor Trust v. Exclusive Hospitality, LLC, 172 A.D.3d 927, 97 N.Y.S.3d 872).  “A motion for leave to renew is not a second chance freely given to a party who has not exercised due diligence in making its first factual presentation” (Krobath v. South Nassau Communities Hosp., 178 A.D.3d 810, 811, 111 N.Y.S.3d 888).  Here, the new facts submitted in support of renewal, relating to the plaintiff's alleged failure to negotiate in good faith during mandatory foreclosure settlement conferences wherein Fabbro appeared by counsel (see generally U.S. Bank N.A. v. Sarmiento, 121 A.D.3d 187, 991 N.Y.S.2d 68), were available to Fabbro at the time of the original motion, and Fabbro did not set forth a reasonable justification for failing to submit those facts on the prior motion.  Moreover, Fabbro failed to establish that the new facts would have changed the prior determination (see e.g. Ciliotta v. Ranieri, 149 A.D.3d 1032, 1034, 52 N.Y.S.3d 474).

CHAMBERS, J.P., MILLER, LASALLE and IANNACCI, JJ., concur.