Cenlar FSB v. Glauber
| Decision Date | 25 November 2020 |
| Docket Number | Index No. 34887/12,2019–03871,2017–08068 |
| Citation | 137 N.Y.S.3d 418,188 A.D.3d 1141 |
| Parties | CENLAR FSB, respondent, v. Eva GLAUBER, appellant, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
Jeremy Rosenberg, Chestnut Ridge, NY, for appellant.
Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Ruth O'Connor of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Eva Glauber appeals from (1) an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated July 13, 2017, and (2) a judgment of foreclosure and sale of the same court dated July 13, 2017. The order granted the plaintiff's motion for a judgment of foreclosure and sale and to confirm the referee's report, and denied the cross motion of the defendant Eva Glauber for leave to renew her opposition to the plaintiff's prior motion for leave to reargue its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Eva Glauber and for an order of reference. The judgment of foreclosure and sale, upon the order, inter alia, confirmed the referee's report and directed the sale of the subject property.
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the 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 order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).
In August 2012, the plaintiff commenced this action to foreclose a mortgage on certain property located in Rockland County against, among others, the defendant Eva Glauber (hereinafter the defendant). The plaintiff alleged that, in July 2002, the defendant executed a note in the sum of $215,000 in favor of Olympia Mortgage Corp. (hereinafter Olympia) and delivered a mortgage to secure payment of the note. The plaintiff also alleged that as of November 2011, the defendant defaulted on the mortgage. The defendant interposed an answer in which she asserted various affirmative defenses, including that the plaintiff lacked standing.
Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated October 27, 2014, the Supreme Court denied the plaintiff's motion, holding that the plaintiff failed to establish standing. On August 6, 2015, however, the court granted the plaintiff's motion for leave to reargue its prior motion and, upon reargument, granted the plaintiff's prior motion, based upon a copy of a written assignment of mortgage which included an assignment of the note from the original mortgage creditor to the plaintiff. The plaintiff thereafter moved for a judgment of foreclosure and sale and to confirm the referee's report. The defendant opposed that branch of the motion which was to confirm the referee's report, on the ground, among others, that the referee had failed to conduct a hearing on notice to her pursuant to CPLR 4313. The defendant also cross-moved for leave to renew her opposition to the plaintiff's motion for reargument. The court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.
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 (see Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). Additionally, where, as here, the plaintiff's standing is placed in issue, the plaintiff must prove its standing in order to be entitled to relief (see U.S. Bank Trust, N.A. v. Porter, 175 A.D.3d 530, 531, 107 N.Y.S.3d 52 ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d at 689, 986 N.Y.S.2d 843 ). A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced (see U.S. Bank N.A. v. Mezrahi, 169 A.D.3d 952, 953, 94 N.Y.S.3d 611 ). " ‘Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the...
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