BAC LP v. Gregorio Alvarado, et al., appellants, et al., defendants.

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

BAC Home Loans Servicing, LP, etc., respondent, v. Gregorio Alvarado, et al., appellants, et al., defendants.

2016–04708 (Index No. 1059/10)

Decided: January 30, 2019

WILLIAM F. MASTRO, J.P. RUTH C. BALKIN HECTOR D. LASALLE FRANCESCA E. CONNOLLY, JJ. Lizarraga Law Firm, PLLC, Jackson Heights, N.Y. (William R. Lizárraga of counsel), for appellants.

Submitted—November 16, 2018

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Gregorio Alvarado and Jose DeLeon appeal from an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered August 24, 2015.  The order, insofar as appealed from, granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against those defendants and an order of reference, and, in effect, denied that branch of those defendants' cross motion which was to dismiss the complaint insofar as asserted against them for lack of standing.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Gregorio Alvarado and Jose DeLeon and an order of reference, and substituting therefor a provision denying the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and so much of a subsequent order of the same court (Salvatore J. Modica, J.) entered June 8, 2017, as, in effect, upon reargument, adhered to the determination in the order entered August 24, 2015, granting the plaintiff's motion, is vacated.

The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense (see CPLR 3018[b];  US Bank Nat. Assn. v. Nelson, _ AD3d _, 2019 N.Y. Slip Op 00494 [2d Dept 2019];  Bank of N.Y. Trust Co., N.A. v. Chiejina, 142 AD3d 570, 572;  One W. Bank, FSB v. Vanderhorst, 131 AD3d 1028, 1028;  see also Matter of Fossella v. Dinkins, 66 N.Y.2d 162, 167).  Here, in opposition to the plaintiff's motion for summary judgment and in support of their cross motion to dismiss, the defendants argued that the plaintiff lacked standing to commence this action.  The plaintiff, in its “reply ․ in further support of plaintiff's motion for summary judgment, and in opposition to defendant's [sic] cross-motion to dismiss,” entirely disregarded the defendants' waiver of the standing defense.  Instead, the plaintiff sought to establish that it had standing to commence the action.  Now, having litigated the standing defense on the merits in the Supreme Court—both on the original motion and in opposition to reargument—the plaintiff argues on appeal that the issue of standing was waived.  Having neglected to raise that dispositive issue in the Supreme Court, the plaintiff may not raise it for the first time on this appeal (see Hurley v. Tolfree, 308 N.Y. 358, 363;  Robles v Brooklyn Queens Nursing Home, Inc., 131 AD3d 1032, 1033;  see generally Arthur Karger, Powers of the New York Court of Appeals § 17.1 at 591–592, et seq. [3d ed rev 2005] ), and we decline to address it (cf.  Sega v. State of New York, 60 N.Y.2d 183, 190 n 2;  HSBC Bank USA, N.A. v. Ozcan, 154 AD3d 822, 824).

The plaintiff also failed, on the merits, to establish prima facie that it had standing to commence the action.  The loan servicer's affidavit, which asserted that the named plaintiff “was in possession of the Note at the time of commencement of this action,” provided no specifics as to the date of delivery or the date of commencement.  The plaintiff's conclusory assertion as to possession on the date of commencement is insufficient to establish standing (see Central Mtge. Co. v. Jahnsen, 150 AD3d 661, 663;  Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d 702, 703–704;  cf.  Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361;  U.S. Bank, N.A. v. Noble, 144 AD3d 786, 788;  Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866, 867).  Moreover, the plaintiff's alternative ground for establishing standing is without merit (see U.S. Bank, N.A. v. Noble, 144 AD3d at 788;  Bank of N.Y. v. Silverberg, 86 AD3d 274, 282).  Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, for summary judgment on the complaint and an order of reference.

The parties' remaining contentions either are without merit or need not be addressed in light of our determination.

MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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