Deutsche Bank Nat'l Trust Co. v. Compton Webster
| Decision Date | 24 August 2016 |
| Citation | 37 N.Y.S.3d 283,2016 N.Y. Slip Op. 05846,142 A.D.3d 636 |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. COMPTON WEBSTER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
142 A.D.3d 636
37 N.Y.S.3d 283
2016 N.Y. Slip Op. 05846
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,
v.
COMPTON WEBSTER, Appellant.
Supreme Court, Appellate Division, Second Department, New York.
Aug. 24, 2016.
Petroff Amshen LLP, Brooklyn, N.Y. (Serge F. Petroff, James Tierney, and Christopher Villanti of counsel), for appellant.
Parker Ibrahim & Berg LLC, New York, N.Y. (John M. Falzone, Brian W. Keatts, and Anthony Del Guercio of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX and BETSY BARROS, JJ.
In an action to recover on a promissory note, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Dear, J.), dated April 30, 2015, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability and denied his cross motion, in effect, for summary judgment dismissing the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and substituting therefor a provision denying that branch of
the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
This action to recover on a promissory note was commenced on January 24, 2014. The subject note was secured by a mortgage, but the plaintiff elected, pursuant to RPAPL 1301, to recover on the note and seek a money judgment. A copy of the note, endorsed in blank, was annexed to the summons and complaint. In his answer, the defendant asserted several affirmative defenses, including lack of standing and failure to comply with certain notice requirements of the RPAPL.
Thereafter, the plaintiff served the defendant with a notice to admit, which included a copy of the note. On this copy of the note, the endorsement in blank was filled in and indicated that the note was endorsed to IndyMac Bank, FSB. This copy of the note also included, on the same page, a second endorsement from IndyMac Bank, FSB, to the plaintiff and an allonge to the note with a third endorsement in blank from the plaintiff.
The plaintiff moved, inter alia, for summary judgment on the complaint. In support, the plaintiff submitted the affidavit of
a representative of the servicer of the loan, who stated that the plaintiff acquired the loan on or about October 25, 2006, and, “directly or through its agent, was in possession of the original Note prior to the commencement of this action and remains in possession of the original note.” The representative stated that the defendant defaulted on his payment obligation under the terms of the note on March 1, 2011, and that, by letter dated April 15, 2011, the loan servicer advised the defendant of his default. The plaintiff submitted a copy of the letter dated April 15, 2011, the content of which conformed with the 90–day notice requirements of RPAPL 1304(1). In addition, the plaintiff submitted a copy of the note, endorsed in blank, that was annexed to the...
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