21st Mortg. Corp. v. Broderick

• Decision Date: 10 February 2021
• Docket Number: 2020–05116,Index No. 19497/13,2020–03385
• Citation: 191 A.D.3d 744,142 N.Y.S.3d 173
• Parties: 21ST MORTGAGE CORPORATION, respondent, v. Nicole BRODERICK, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 744

142 N.Y.S.3d 173

21ST MORTGAGE CORPORATION, respondent,

v.Nicole BRODERICK, appellant, et al., defendants.

2020–03385

2020–05116

Index No. 19497/13

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

Submitted—November 19, 2020

February 10, 2021

Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.

Taroff & Taitz, LLP, Bohemia, N.Y. (Steven Taitz and Linda D. Calder of counsel), for respondent.

REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Nicole Broderick appeals from (1) an order of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), dated March 5, 2020, and (2) an order and judgment of foreclosure and sale (one paper) of the same court, also dated March 5, 2020. The order granted the plaintiff's motion to confirm the referee's report, for a judgment of foreclosure and sale, and for an award of attorney's fees. The order and judgment of foreclosure and sale, upon an order of the same court dated July 30, 2019, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Nicole Broderick, to strike her answer, and for an order of reference, and upon a second order of the same court, also dated July 30, 2019, among other things, granting the same relief to the plaintiff and appointing a referee to compute the amount due to the plaintiff, inter alia, directed the sale of the subject property and awarded attorney's fees to the plaintiff in the sum of $9,500.

ORDERED that the appeal from the order dated March 5, 2020, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Nicole Broderick, to strike her answer, and for an order of reference are denied, the plaintiff's motion to confirm the referee's report, for a judgment of foreclosure and sale, and for an award of attorney's fees is denied, and the two orders dated July 30, 2019, and the order dated March 5, 2020, are modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendant Nicole Broderick.

The appeal from the order dated March 5, 2020 (hereinafter the March 2020 order), must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the March 2020 order, and those from an order dated July 30, 2019 (hereinafter the first July 2019 order), inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Nicole Broderick (hereinafter the defendant), to strike her answer, and for an order of reference, and another order, also dated July 30, 2019 (hereinafter the second July 2019 order), inter alia, granting the same relief to the plaintiff and appointing a referee to compute the amount due to the plaintiff, are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).

In July 2013, Wells Fargo, Bank, N.A. (hereinafter Wells Fargo), commenced this action alleging that the defendant defaulted on a note she had executed in favor of Wells Fargo in the principal sum of $272,000. The note was secured by a mortgage against certain real property located in Suffolk County. The defendant thereafter answered the complaint. By so-ordered stipulation dated October 24, 2018, 21st Mortgage Corporation, Wells Fargo's successor in interest, was substituted as the plaintiff.

In January 2019, the plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendant's answer, and for an order of reference. The defendant opposed the motion. In the first July 2019 order, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike that defendant's answer, and for an order of reference. In the second July 2019 order, the court granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.

In December 2019, the referee issued her report, and the plaintiff then moved to confirm the referee's report, for a judgment of foreclosure and sale, and for an award of attorney's fees. The defendant opposed the motion. In the March 2020 order, the Supreme Court granted the plaintiff's motion. In an order and judgment of foreclosure and sale, also dated March 5, 2020, the court granted the plaintiff's motion, directed the sale of the subject property, and awarded the plaintiff attorney's fees in the sum of $9,500. The defendant appeals.

" ‘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’ " ( U.S. Bank N.A. v. Bochicchio, 179 A.D.3d 1133, 1134, 118 N.Y.S.3d 191, quoting US Bank N.A. v. Sabharwal, 175 A.D.3d 1454, 1455, 109 N.Y.S.3d 191 [internal quotation marks omitted]). "Where, as here, ‘the issue of standing is raised by a defendant in a mortgage foreclosure action, a plaintiff must prove its standing in order to be entitled to relief against that defendant’ " ( U.S. Bank N.A. v. Bochicchio, 179 A.D.3d at 1134, 118 N.Y.S.3d 191, quoting Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 203, 97 N.Y.S.3d 286 ).

Contrary to the defendant's contention, here, the plaintiff established, prima facie, that its predecessor in interest, Wells Fargo, had standing to commence this action because it annexed a copy of the note, endorsed in blank, to the complaint when this action was commenced (see Deutsche Bank Natl. Trust Co. v. Bowens, 181 A.D.3d 871, 873, 121 N.Y.S.3d 327 ; Bank of N.Y. Mellon v. Viola, 181 A.D.3d 767, 769, 122 N.Y.S.3d 55 ). In support of its motion for summary judgment, the plaintiff also submitted an affidavit of its legal affairs representative who averred that the note was thereafter transferred to the plaintiff. In opposition, the defendant failed to raise a triable issue of fact as to the issue of standing.

However, the plaintiff was not entitled to summary judgment, as the plaintiff failed to establish that it complied with the notice requirements of RPAPL 1304 (see U.S. ROF III Legal Tit. Trust 2015–1 v. Hayes, 188 A.D.3d 758, 759–780,...