Deutsche Bank Nat'l Trust Co. v. Weiss
| Decision Date | 18 November 2015 |
| Citation | 133 A.D.3d 704,21 N.Y.S.3d 126 |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Brian WEISS, appellant, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
133 A.D.3d 704
21 N.Y.S.3d 126
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,
v.
Brian WEISS, appellant, et al., defendants.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 18, 2015.
Law Office of Lawrence Katz PLLC, Cedarhurst, N.Y., for appellant.
McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y., and Greenberg Traurig, LLP, New York, N.Y. (Michael A. Weiss of counsel), for respondent (one brief filed).
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.
In an action to foreclose a mortgage, the defendant Brian Weiss appeals, as limited by his brief, from (1) so much an order of the Supreme Court, Nassau County (Adams, J.), dated April 25, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to appoint a referee to compute the amount due to the plaintiff, and (2) so much of an order of the same court, also dated April 25, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer, and to appoint a referee to compute the amount due to the plaintiff.
ORDERED that the appeal from the first order dated April 25, 2014, is dismissed, as that order was superseded by the second order; and it is further,
ORDERED that the second order dated April 25, 2014, is reversed insofar as appealed from, on the law, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Brian Weiss, to strike the answer of that defendant, and to appoint a referee to compute the amount due to the plaintiff are denied, and the first order dated April 25, 2014, is vacated; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
"[I]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default" (Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 1080, 915 N.Y.S.2d 591 [internal quotation marks omitted]; see Citimortgage, Inc. v. Chow Ming Tung, 126 A.D.3d 841, 842, 7 N.Y.S.3d 147 ; US Bank N.A. v. Weinman, 123 A.D.3d 1108, 1109, 2 N.Y.S.3d 128 ). "Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief" (HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 983, 15 N.Y.S.3d 117 ; see Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ; U.S. Bank, N.A. v....
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