Deutsche Bank Nat'l Trust Co. v. Abdan

• Decision Date: 16 September 2015
• Docket Number: 2014-03832, Index No. 30549/11.
• Citation: 2015 N.Y. Slip Op. 06775,16 N.Y.S.3d 459 (Mem),131 A.D.3d 1001
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Rachel ABDAN, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1001

16 N.Y.S.3d 459 (Mem)

2015 N.Y. Slip Op. 06775

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent

v.Rachel ABDAN, appellant, et al., defendants.

2014-03832, Index No. 30549/11.

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

Sept. 16, 2015.

Menashe & Associates, LLP, Montebello, N.Y. (Chezki Menashe of counsel), for appellant.

Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Michel Lee of counsel), for respondent.

Opinion

In an action to foreclose a mortgage, the defendant Rachel Abdan appeals from a judgment of foreclosure and sale of the Supreme Court, Rockland County (Kelly, J.), dated September 4, 2013, which, upon an order of the same court dated November 5, 2012, granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against her, among other things, directed the sale of the subject premises.

ORDERED that the judgment is affirmed, with costs.

“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. When, however, the defendant has placed standing in issue, the plaintiff must establish proper standing as part of its prima facie case” (Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 [citations omitted] ).

Here, in support of that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendant Rachel Abdan, the plaintiff produced the mortgage, the unpaid note, and evidence of default. The plaintiff also established that it had standing to commence this action by submitting the affidavit of a vice-president of the plaintiff's loan servicer, which established that the plaintiff had physical possession of the note prior to the commencement of this action (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wells Fargo Bank, N.A. v. Arias, 121 A.D.3d 973, 974, 995 N.Y.S.2d 118 ; Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 650, 981 N.Y.S.2d 547 ). In opposition, Abdan failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Abdan.

RIVERA, J.P., DICKERSON, COHEN and BARROS, JJ., concur.