DLJ Mortg. Capital, Inc. v. David

• Decision Date: 22 February 2017
• Citation: 48 N.Y.S.3d 234,147 A.D.3d 1024
• Parties: DLJ MORTGAGE CAPITAL, INC., plaintiff, v. Carol DAVID, respondent, et al., defendants; Rockaway Acquisitions, LLC, nonparty-appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1024

48 N.Y.S.3d 234

DLJ MORTGAGE CAPITAL, INC., plaintiff,

v. Carol DAVID, respondent, et al., defendants;Rockaway Acquisitions, LLC, nonparty-appellant.

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

Feb. 22, 2017.

Suslovich & Klein LLP, Brooklyn, NY (Mark M. Kranz, Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. [Bruce J. Bergman ], and Kellner Herlihy Getty & Friedman LLP [Douglas A. Kellner ], of counsel), for nonparty-appellant.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.

In an action to foreclose a mortgage, nonparty Rockaway Acquisitions, LLC, as successor-by-assignment to the plaintiff, appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated September 11, 2013, as denied its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Carol David, and granted the cross motion of the defendant Carol David for leave to amend her answer to assert the defense of lack of standing, and (2) so much of an order of the same court dated September 15, 2014, as denied its motion for leave to renew its prior motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Carol David and its prior opposition to the cross motion of the defendant Carol David for leave to amend her answer to assert the defense of lack of standing, and granted that branch of the cross motion of the defendant Carol David which was for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order dated September 11, 2013, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated September 15, 2014, is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendant Carol David which was for summary judgment dismissing the complaint insofar as asserted against her, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order dated September 15, 2014, is affirmed insofar as appealed from, without costs or disbursements.

The defendant Carol David (hereinafter the defendant) financed the purchase of real property with a mortgage loan from First United Mortgage Banking Corp. (hereinafter First United) on March 29, 2006. The defendant executed a note and mortgage on that date. The mortgage and note were assigned several times to various entities. The defendant defaulted in paying her monthly loan obligation starting June 1, 2006. On February 7, 2008, the plaintiff, DLJ Mortgage Capital, Inc. (hereinafter DLJ), commenced this action to foreclose the mortgage. The defendant interposed an answer dated March 25, 2008, which did not assert lack of standing as a defense.

By notice of motion dated December 3, 2012, nonparty Rockaway Acquisitions, LLC (hereinafter Rockaway), as successor-by-assignment to DLJ, moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. In support of the motion, Rockaway submitted copies of the mortgage and note, as well as copies of the various assignments of the mortgage and allonges to the note. The defendant opposed the motion and cross-moved for leave to amend her answer to assert the defense of lack of standing. The defendant argued that the various assignments of the mortgage and certain undated allonges to the note, which were submitted by Rockaway in support of its motion, raised a question of fact as to whether DLJ had standing to commence the action. In reply to the cross motion and in further support of its motion, Rockaway submitted the affidavit of a vice president of DLJ which stated that, according to DLJ's records, a "mortgage loan" was assigned and physically delivered by Mortgage Electronic Registration Systems, Inc., as nominee for First United, to DLJ on a specific date prior to the commencement of the action. In an order dated September 11, 2013, the Supreme Court, inter alia, granted the defendant's cross motion and denied Rockaway's motion.

Subsequently, Rockaway moved for leave to renew its prior motion for summary judgment on the complaint insofar as asserted against the defendant and its prior opposition to the defendant's cross motion for leave to amend her answer to assert the defense of lack of standing. The defendant opposed the motion and cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against her. The Supreme Court, in an order dated September 15, 2014, among other things, denied the plaintiff's motion for leave to renew and granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against her. Rockaway appeals from the orders dated September 11, 2013, and September 15, 2014.

The Supreme Court providently exercised its discretion in granting the defendant's cross motion for leave to amend her answer to...