Kondaur Capital Corp. v. McCary

• Decision Date: 05 March 2014
• Citation: 115 A.D.3d 649,981 N.Y.S.2d 547,2014 N.Y. Slip Op. 01438
• Parties: KONDAUR CAPITAL CORPORATION, respondent, v. Rochelle McCARY, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 649

981 N.Y.S.2d 547

2014 N.Y. Slip Op. 01438

KONDAUR CAPITAL CORPORATION, respondent,

v.Rochelle McCARY, appellant, et al., defendant.

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

March 5, 2014.

Rochelle McCary–Craig, sued herein as Rochelle McCary, Mastic, N.Y., appellant pro se.

Lawrence & Walsh, P.C., Hempstead, N.Y. (Eric P. Wainer of counsel), for NS Realty Investors Group, LLC, as successor in interest to Kondaur Capital Corporation.

In an action to foreclose a mortgage, the defendant Rochelle McCary appeals from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Farneti, J.), entered December 5, 2012, which, upon an order of the same court dated February 14, 2012, inter alia, granting the plaintiff's motion, among other things, for summary judgment on the complaint and denying her cross motion, inter alia, to dismiss the complaint insofar as asserted against her for lack of standing, and upon confirming a referee's report finding that the sum of $366,406.79 was due upon the mortgage, is in favor of the plaintiff and against her directing a foreclosure and sale of the subject property.

ORDERED that the judgment is affirmed, with costs.

“Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief” ( Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182;see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532;U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced ( see HSBC Bank USA v. Hernandez, 92 A.D.3d 843, 939 N.Y.S.2d 120;Bank of N.Y. v. Silverberg, 86 A.D.3d at 279, 926 N.Y.S.2d 532;U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 753, 890 N.Y.S.2d 578). The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing “[e]ither a written assignment of the underlying note or the physical delivery of the note” ( U.S. Bank, N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578;see Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609).

Here, in support of that branch of its motion which was for summary judgment on the complaint, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default ( see Deutsche...