Deutsche Bank Nat'l Trust Co. v. Anderson

• Decision Date: 23 May 2018
• Docket Number: 2016–07546,Index No. 21435/13
• Citation: 161 A.D.3d 1043,79 N.Y.S.3d 42
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant, v. Sandra ANDERSON, etc., respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1043

79 N.Y.S.3d 42

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant,

v.Sandra ANDERSON, etc., respondent, et al., defendants.

2016–07546

Index No. 21435/13

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

Argued—January 23, 2018

May 23, 2018

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Sarah J. Greenberg of counsel), for appellant.

Sandra Anderson, Jamaica, NY, respondent pro se.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (David Elliot, J.), dated July 22, 2015. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Sandra Anderson and for leave to appoint a referee to compute the sums due the plaintiff.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On July 26, 2006, Floyd Bailey executed a promissory note in the principal sum of $470,250 in favor of IMPAC Funding Corporation, doing business as IMPAC Lending Group (hereinafter IMPAC), which was secured by a mortgage on residential property located in South Ozone Park. Bailey defaulted on the loan by failing to make the monthly installment payment due on December 1, 2007. Thereafter, Bailey died and, by a decree of the Surrogate's Court dated August 23, 2012, the defendant Sandra Anderson was appointed as executrix of his estate. On November 21, 2013, the plaintiff commenced this action to foreclose the mortgage against, among others, Anderson, as executrix of Bailey's estate. After issue was joined, the plaintiff moved, inter alia, for summary judgment on the complaint and for leave to appoint a referee. In support of the motion, the plaintiff asserted, inter alia, that the note had been lost or destroyed and it would seek to prove the promissory note using a lost note affidavit along with a copy of the original note. Anderson opposed the motion. The Supreme Court denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Anderson and for leave to appoint a referee. The plaintiff 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. Abdan, 131 A.D.3d 1001, 1001, 16 N.Y.S.3d 459 ; see Hudson City Sav. Bank v. Genuth, 148 A.D.3d 687, 48 N.Y.S.3d 706 ). Pursuant to UCC 3–804, which is intended to provide a method of recovery on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit "due proof of [the plaintiff's] ownership, the facts which prevent [its] production of [the note,] and its terms" ( UCC 3–804 ; see Weiss v. Phillips, 157 A.D.3d 1, 65 N.Y.S.3d 147 ; US Bank N.A. v. Richards, 155 A.D.3d 522, 65 N.Y.S.3d 178 ).

Here, the Supreme Court properly concluded that, although the plaintiff was unable to produce the note, a copy of the note submitted by the plaintiff provided sufficient evidence of its terms (see N.Y. Community Bank v. Jennings, 2015 N.Y. Slip Op. 31591(U), *4, 2015 WL 5062168 [Sup. Ct.,...