Sec. Lending, Ltd. v. New Realty Corp.

• Court: New York Supreme Court — Appellate Division
• Citation: Sec. Lending, Ltd. v. New Realty Corp., 2016 NY Slip Op 5986, 142 A.D.3d 986, 37 N.Y.S.3d 327 (N.Y. App. Div. 2016)
• Decision Date: 14 September 2016
• Parties: SECURITY LENDING, LTD., respondent, v. NEW REALTY CORP., et al., appellants, et al., defendants.

142 A.D.3d 986

37 N.Y.S.3d 327

2016 N.Y. Slip Op. 05986

SECURITY LENDING, LTD., respondent,

v.NEW REALTY CORP., et al., appellants, et al., defendants.

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

Sept. 14, 2016.

Gail M. Blasie, Garden City, N.Y., for appellants.

Polsinelli P.C., New York, N.Y. (Brett D. Anders and Jason A. Nagi of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.

In an action to foreclose a mortgage, the defendants New Realty Corp., South Miller Realty, LLC, and Thomas Carchietta appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Winslow, J.), entered December 30, 2013, which, upon an order of the same court entered May 22, 2013, granting the plaintiff's renewed motion for summary judgment on the complaint and denying their cross motion, made jointly with the defendant James Carchietta, to vacate the note of issue, granted the plaintiff's motion to confirm a referee's report dated August 22, 2013, confirmed the report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Bank of N.Y. Mellon v. Visconti, 136 A.D.3d 950, 25 N.Y.S.3d 630 ; HSBC Bank USA, N.A. v. Spitzer, 131 A.D.3d 1206, 1206–1207, 18 N.Y.S.3d 67 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it was either the holder or assignee of the underlying note at the time the action was commenced (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475, affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; 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 ). “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” (U.S. Bank N.A. v. Collymore, 68 A.D.3d at 754, 890 N.Y.S.2d 578 ).

Here, in support of its renewed motion for summary judgment on the complaint, Rossrock Fund II, LP (hereafter Rossrock), the original plaintiff named in this foreclosure action, demonstrated, prima facie, its standing as the holder of the note. Rossrock submitted the affidavit of its vice president, James Ross. Ross averred that Rossrock had physical possession of the note prior to the commencement of the action, after the note and the subject mortgage were duly...