U.S. Bank National Association, etc., respondent, v. Liat Cohen, etc., appellant, et al., defendants. (2026)

Submitted—February 6, 2026

DECISION & ORDER

A/

In an action to foreclose a mortgage, the defendant Liat Cohen appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated October 3, 2023.  The order, 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 Liat Cohen, to strike that defendant's answer, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On June 12, 2015, the plaintiff commenced this action against the defendant Liat Cohen (hereinafter the defendant), among others, to foreclose a consolidated mortgage on certain residential property located in Brooklyn.  The defendant interposed an answer in which she asserted, inter alia, various affirmative defenses, including lack of standing, as well as two counterclaims.  In an order dated March 12, 2018, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment dismissing the defendant's counterclaims and denied the defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against her.

Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference.  The defendant opposed the motion.  In an order dated October 3, 2023, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.  The defendant appeals.

The defendant fails to articulate a meritorious basis to disturb the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference.  Contrary to the defendant's contention, an affidavit of an employee of the plaintiff's loan servicer laid a proper foundation for the admission of the business records that were relied upon and annexed to the affidavit (see CPLR 4518[a];  Wilmington Trust, N.A. v. Pacific St. Servs., Inc., 246 AD3d 777;  U.S. Bank N.A. v. Kandra, 197 AD3d 590, 592).  Moreover, the presence in the record of an unendorsed version of the consolidated note did not raise a triable issue of fact as the plaintiff's standing at the time of commencement of the action (see U.S. Bank, N.A. v. Primiano, 191 AD3d 926, 928;  HSBC Bank USA, N.A. v. Chabot, 191 AD3d 648, 648;  cf.  JPMorgan Chase Bank, N.A. v Rodriguez, 201 AD3d 903, 905–906).

Contrary to the defendant's contention, the plaintiff demonstrated, prima facie, its strict compliance with RPAPL 1304 (see Wells Fargo Bank v. Kohli, 241 AD3d 1402, 1403).  In opposition, the defendant failed to raise a triable issue of fact.  The defendant's contentions that the plaintiff failed to comply with RPAPL 1303 and 1306, which were not advanced in opposition to the plaintiff's motion, among other things, for summary judgment on the complaint insofar as asserted against the defendant, are improperly raised for the first time on appeal (see FNBN I, LLC v. DiTomasso, 199 AD3d 656, 658).

The plaintiff's remaining contention need not be reached in view of our determination.

CHAMBERS, J.P., WOOTEN, WAN and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court