BANK NATIONAL ASSOCIATION v. Mohammed Hossain, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

U.S. BANK NATIONAL ASSOCIATION, etc., Plaintiff–Respondent, v. Nilufar HOSSAIN, Defendant–Appellant, Mohammed Hossain, et al., Defendants.


Decided: November 21, 2019

Friedman, J.P., Renwick, Oing, Singh, JJ. The Law Office of Lawrence A. Garvey & Associates, P.C., White Plains (Joseph Reiter of counsel), for appellant. Roach & Lin, P.C., Syosset (Michael C. Manniello of counsel), for respondent.

Order, Supreme Court, New York County (Judith Reeves McMahon, J.), entered October 17, 2018, which, upon the motion by Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, not in its individual capacity but solely as trustee for Winsted Funding Trust 2015–1 (Wilmington), granted summary judgment to plaintiff, unanimously affirmed, without costs.

Plaintiff's standing to bring this mortgage foreclosure action was established by the submission of a copy of the mortgage, a copy of the note, indorsed in blank, on which it is undisputed that defendant defaulted, and a copy of the mortgage assignment, which were all attached to the complaint (Wilmington Savings Fund Society, FSB v. Moran, 175 A.D.3d 1196, 106 N.Y.S.3d 857 [1st Dept. 2019]). Also submitted was an affidavit by an employee of plaintiff's servicing agent with personal knowledge of its business records, who averred that the note was in plaintiff's physical possession at the time the action was commenced (see PNC Bank, N.A. v. Salcedo, 161 A.D.3d 571, 77 N.Y.S.3d 370 [1st Dept. 2018]).

Wilmington, as assignee and the current holder of the note, indorsed in blank, and mortgage, is permitted to “continue [the] action in the name of the original mortgagee, even in the absence of a formal substitution” (Central Fed. Sav. v. 405 W. 45th St., 242 A.D.2d 512, 512, 662 N.Y.S.2d 489 [1st Dept. 1997]; CPLR 1018). Wilmington's standing is demonstrated by an affidavit by an employee of its servicing agent with personal knowledge of its business records who averred that it currently has possession of the original note (see e.g. PNC Bank, 161 A.D.3d at 572, 77 N.Y.S.3d 370; U.S. Bank N.A. v. Askew, 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept. 2016]; Wells Fargo Bank, N.A. v. Ndiaye, 146 A.D.3d 684, 44 N.Y.S.3d 908 [1st Dept. 2017]).

We have considered defendant's remaining arguments and find them unavailing.