U.S. Bank Nat'l Ass'n v. Denaro
| Decision Date | 12 September 2012 |
| Citation | 2012 N.Y. Slip Op. 06135,950 N.Y.S.2d 581,98 A.D.3d 964 |
| Parties | U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Anthony D. DENARO, etc., et al., appellants, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Anthony D. Denaro, Hempstead, N.Y., appellant pro se and for appellant Ann *582Denaro, also known as Anne Marie Denaro.
Shapiro, DiCarlo & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
In an action, inter alia, to foreclose a mortgage, the defendants Anthony D. Denaro, also known as Anthony Denaro, and Ann Denaro, also known as Anne Marie Denaro, appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April 14, 2011, as denied that branch of their motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them and granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“In a mortgage foreclosure action, a plaintiff has standing where 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” ( Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532;see U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578). Here, the defendants Anthony D. Denaro, also known as Anthony Denaro, and Ann Denaro, also known as Anne Marie Denaro (hereinafter together the Denaro defendants) waived any defense based on the plaintiff's alleged lack of standing because they failed to interpose that defense in their answer or amended answer, or in a timely pre-answer motion to dismiss the complaint ( seeCPLR 3211[e]; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244, 837 N.Y.S.2d 247). Accordingly, the Supreme Court properly denied that branch of the Denaro defendants' motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them.
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 Archer Capital Fund, L.P. v. GEL, LLC, 95 A.D.3d 800, 944 N.Y.S.2d 179;Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 939 N.Y.S.2d 73). In opposition, the Denaro defendants failed to raise a triable...
To continue reading
Request your trial
-
Deutsche Bank Nat'l Trust Co. v. Torres
...964 N.Y.S.2d 548 [2d Dept 2013] ; Solomon v. Burden, 104 A.D.3d 839, 961 N.Y.S.2d 535 [2d Dept 2013] ; US Bank Natl. Ass'n. v. Denaro, 98 A.D.3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Baron Assoc., LLC v. Garcia Group Enter., 96 A.D.3d 793, 946 N.Y.S.2d 611 [2d Dept 2012] ). This standard i......
-
Wells Fargo Bank N.A. v. Arthur
...established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212 ; RPAPL § 1321 ; U.S. Bank, N.A. v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Capital One, N.A. v. Knollwood Props. II, LLC, 98 AD3d 707, 950 N.Y.S.2d 482 [2d Dept 2012] ). In the insta......
-
BAC Home Loan Servicing, LP v. Bertram
...N.Y.S.2d 181 [2d Dept.2012] ; Bank of New York v. Alderazi, 99 A.D.3d 837, 951 N.Y.S.2d 900 [2d Dept.2012] ; U.S. Bank Natl. Ass'n. v. Denaro, 98 A.D.3d 964, 950 N.Y.S.2d 581; U.S. Bank v. Emmanuel, 83 A.D.3d 1047, 921 N.Y.S.2d 320 [2d Dept.2011] ; Wells Fargo Bank Minn., N.A. v. Mastropaol......
-
Bank of Am. v. Candy Maeder, PNC Bank, Nat'l Ass'n, 060078/2013.
...895, 964 N.Y.S.2d 548 [2d Dept 2013] ; Solomon v. Burden, 104 AD3d 839, 961 N.Y.S.2d 535 [2d Dept 2013] ; US Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012] ; Citibank, N.A. v.......