Citibank, N.A. v. Herman

• Decision Date: 04 February 2015
• Parties: CITIBANK, N.A., etc., respondent, v. Thomas HERMAN, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

?125 A.D.3d 587
3 N.Y.S.3d 379
2015 N.Y. Slip Op. 00838

CITIBANK, N.A., etc., respondent,
v.
Thomas HERMAN, et al., appellants, et al., defendants.

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

Feb. 4, 2015

Reversed.

[3 N.Y.S.3d 380]

Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, N.Y. (Christopher A. Gorman of counsel), for appellants.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action to foreclose a mortgage, the defendants Thomas Herman and Barbara Herman appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated April 23, 2013, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them based upon lack of standing and for the cancellation of a certain notice of pendency filed against the subject property.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendants Thomas Herman and Barbara Herman which were for summary judgment dismissing the complaint insofar as asserted against them based upon lack of standing and for the cancellation of a certain notice of pendency filed against the subject property are granted.

In a mortgage foreclosure action, a plaintiff has standing when it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced ( see Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547; HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120; Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532; Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204, 209, 887 N.Y.S.2d 615; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578). The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note ( see Kondaur Capital Corp. v. McCary, 115 A.D.3d at 650, 981 N.Y.S.2d 547; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609; U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578). As a general matter, once a promissory note is tendered to and accepted by an assignee, the...