ROSE LAND AND FINANCE CORP v. VASSILIADES

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

ROSE LAND AND FINANCE CORP., respondent, v. Neoklis VASSILIADES, et al., appellants, et al., defendants.

Decided: August 24, 2016

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, THOMAS A. DICKERSON, and BETSY BARROS, JJ. Charles Wallshein, Melville, NY, for appellants. Jeffrey A. Kosterich, Tuckahoe, NY (Robert A. Levey of counsel), for respondent.

In an action to foreclose a mortgage, the defendants Neoklis Vassiliades and Sotera Vassiliades appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered February 24, 2015, which granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference.

ORDERED that the order is affirmed, with costs.

In April 2013, the plaintiff commenced this action against, among others, the defendant Neoklis Vassiliades (hereinafter the defendant) arising out of the defendant's default in meeting his payment obligations pursuant to a note and mortgage both dated June 14, 2007.  Thereafter, the defendant interposed an answer and alleged, as an affirmative defense, that the plaintiff lacked standing.  In an order entered February 24, 2015, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference.

The Supreme Court properly granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference.  The plaintiff established its prima facie entitlement to judgment as a matter of law by producing copies of the unpaid note, the mortgage, and evidence of the defendant's default (see LNV Corp. v. Francois, 134 A.D.3d 1071, 22 N.Y.S.3d 543;  TD Bank, N.A. v. Mandia, 133 A.D.3d 590, 20 N.Y.S.3d 83).

 Since the defendant placed the plaintiff's standing in issue, the plaintiff was also required to provide prima facie proof that it had standing at the time the action was commenced (see LNV Corp. v. Francois, 134 A.D.3d at 1072, 22 N.Y.S.3d 543;  Nationstar Mtge., LLC v. Wong, 132 A.D.3d 825, 18 N.Y.S.3d 669).  “A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced” (HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 984, 15 N.Y.S.3d 117;  see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 360–362, 12 N.Y.S.3d 612, 34 N.E.3d 363).  “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 at 754, 890 N.Y.S.2d 578;  see YMJ Meserole, LLC v. 98 Meserole St., LLC, 133 A.D.3d 848, 849, 20 N.Y.S.3d 407).  Here, the plaintiff established its standing as the holder of the note by submitting evidence including the note, which contained signed endorsements, and the affidavit of its vice president, which stated that the plaintiff obtained physical possession of the note prior to the commencement of the action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 360–362, 12 N.Y.S.3d 612, 34 N.E.3d 363;  JPMorgan Chase Bank, N.A. v. Mantle, 134 A.D.3d 903, 23 N.Y.S.3d 258;  YMJ Meserole, LLC v. 98 Meserole St., LLC, 133 A.D.3d at 849, 20 N.Y.S.3d 407).  In opposition, the defendant failed to raise a triable issue of fact (see LNV Corp. v. Francois, 134 A.D.3d at 1072, 22 N.Y.S.3d 543;  Nationstar Mtge., LLC v. Wong, 132 A.D.3d at 826, 18 N.Y.S.3d 669).

The appellants' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference.

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