U.S. Bank Nat'l Ass'n v. Dellarmo

• Decision Date: 03 April 2012
• Citation: 942 N.Y.S.2d 122,2012 N.Y. Slip Op. 02481,94 A.D.3d 746
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Joseph DELLARMO, also known as Joseph Dell'Armo, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02481
94 A.D.3d 746
942 N.Y.S.2d 122

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,
v.
Joseph DELLARMO, also known as Joseph Dell'Armo, appellant, et al., defendants.

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

April 3, 2012.

[942 N.Y.S.2d 123]

Schloss & Schloss, Airmont, N.Y. (Jonathan B. Schloss of counsel), for appellant.

Locke Lord, LLP, New York, N.Y. (R. James DeRose III of counsel), for respondent.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

[94 A.D.3d 747] In an action to foreclose a mortgage, the defendant Joseph Dellarmo, also known as, Joseph Dell'Armo, appeals from an order of the Supreme Court, Rockland County (Weiner, J.), entered October 5, 2010, which denied his motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of standing.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Joseph Dellarmo, also known as Joseph Dell'Armo, to dismiss the complaint insofar as asserted against him is granted.

In commencing this action on April 25, 2006, to foreclose a mortgage entered into by the defendant Joseph Dellarmo, also known as Joseph Dell'Armo (hereinafter Dellarmo), the plaintiff asserted in its complaint that it had been assigned the subject mortgage by assignment dated April 11, 2006, which was duly recorded with the Clerk of Rockland County. Dellarmo failed to answer or appear, but thereafter moved, inter alia, to enjoin the plaintiff from foreclosing on the property on the ground that it lacked standing, and to vacate a default judgment entered against him. On October 30, 2009, while Dellarmo's motion was pending, a “Corrective Assignment of Mortgage” (hereinafter the corrective assignment) dated July 28, 2009, to the plaintiff was recorded with the Clerk of Rockland County, purporting to “correct and replace the April 11, 2006 assignment ... which was sent for recording but was lost prior to being recorded” by the Clerk of Rockland County. The corrective assignment was notarized outside New York State but unaccompanied by a CPLR 2309(c) certification. By order dated January 4, 2010, the Supreme Court determined, based on the April 11, 2006, assignment, which the complaint described as having been recorded, and without referencing the corrective assignment, that the plaintiff had standing to commence this action, and directed a hearing to determine the validity of the service of process. Following the hearing, the Supreme Court vacated the default judgment entered against Dellarmo.

Dellarmo moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as

[942 N.Y.S.2d 124]

asserted against him, contending, among other things, that the corrective assignment was a nullity, as it had been notarized out-of-state without the required CPLR 2309(c) certification, and, even if the corrective assignment was valid, the plaintiff nevertheless lacked standing to bring this action, as it was not the holder in due course of both the mortgage...