Deutsche Bank Nat'l Trust Co. v. Denardo

• Decision Date: 12 December 2018
• Docket Number: 2016-06932,2016-06933,Index No. 67728/14
• Citation: 167 A.D.3d 710,90 N.Y.S.3d 218
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent, v. Joseph DENARDO, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 710

90 N.Y.S.3d 218

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent,

v.Joseph DENARDO, Appellant, et al., Defendants.

2016-06932

2016-06933

Index No. 67728/14

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

Submitted—June 18, 2018

December 12, 2018

McMahon & McCarthy, Bronx, N.Y. (Matthew J. McMahon of counsel), for appellant.

Hinshaw & Culbertson, LLP, New York, N.Y. (Matthew C. Ferlazzo of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

In October 2014, the plaintiff commenced this mortgage foreclosure action against Joseph Denardo (hereinafter the defendant), among others. The defendant interposed an answer with various affirmative defenses alleging, among other things, that the plaintiff lacked standing to commence the action. The defendant also demanded that the plaintiff answer certain interrogatories, including whether the plaintiff was the owner of the note at the time it commenced the action. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his affirmative defenses, and for the appointment of a referee. The defendant opposed the motion and cross-moved pursuant to CPLR 3124 to compel further discovery on the issue of standing. In two orders, both dated May 18, 2016, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. 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’ " ( Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). However, where a defendant places standing in issue, the plaintiff must also prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d at 684, 37 N.Y.S.3d 25 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Central Mtge. Co. v. Jahnsen, 150 A.D.3d 661, 663, 56 N.Y.S.3d 107 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosureaction is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( Central Mtge. Co. v. Jahnsen, 150 A.D.3d at 663, 56 N.Y.S.3d 107 [internal quotation marks omitted]; see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ).

Here, the plaintiff established its standing by annexing the note, endorsed in blank, to the complaint at the time the action was commenced (see U.S. Bank N.A. v. Coppola, 156 A.D.3d 934, 935, 68 N.Y.S.3d 120 ; Deutsche Bank Natl. Trust Co. v. Carlin, 152 A.D.3d 491, 492, 61 N.Y.S.3d 16 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). The...