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

• Decision Date: 25 March 2021
• Docket Number: 525964
• Citation: 145 N.Y.S.3d 650,192 A.D.3d 1405
• Parties: U.S. BANK NATIONAL ASSOCIATION, as Trustee, Respondent, v. Yiannakis C. IOANNIDES, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1405

145 N.Y.S.3d 650

U.S. BANK NATIONAL ASSOCIATION, as Trustee, Respondent,

v.Yiannakis C. IOANNIDES, Appellant.

525964

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

Calendar Date: February 8, 2021

Decided and Entered: March 25, 2021

Yiannakis C. Ioannides, New York City, appellant pro se.

McCalla Raymer Leibert Pierce, LLC, New York City (Charles Jeanfreau of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from an order of the Supreme Court (Mott, J.), entered February 10, 2017 in Columbia County, which, among other things, granted plaintiff's motion for summary judgment.

In 2005, defendant executed a promissory note that was secured by a mortgage on certain real property in the City of Hudson, Columbia County. In 2012, following defendant's default on the mortgage, plaintiff commenced this action to foreclose on the mortgage. Defendant, acting pro se, joined issue and asserted various affirmative defenses, including lack of standing and personal jurisdiction due to improper service. Plaintiff thereafter moved for summary judgment. Supreme Court denied the motion, finding that a question of fact existed on the issue of standing, and later denied plaintiff's motion to reargue or renew. In 2016, plaintiff sent discovery demands to defendant, including a notice to admit, which asked defendant to admit, among other things, that he had executed the subject note and mortgage, that he had defaulted on his obligations under the note and mortgage and that he had received certain 90–day pre-foreclosure notices. After defendant failed to respond to the notice to admit, plaintiff once again moved for summary judgment. Then represented by counsel, defendant opposed the motion and cross-moved for dismissal of the complaint based upon, among other things, improper service of the summons and complaint. Supreme Court granted plaintiff's motion for summary judgment and denied defendant's cross motion, prompting this appeal by defendant.

Defendant argues that Supreme Court should have granted his cross motion for dismissal of the complaint based upon improper service. However, although defendant raised the defense of improper service in his answer, as Supreme Court properly concluded, defendant waived the defense by thereafter failing to move for dismissal of the complaint on that ground within 60 days of serving his answer (see CPLR 3211[e] ). Although Supreme Court did not address defendant's request for an extension of the 60–day time period, we find that defendant failed to make the requisite showing of "undue hardship" to warrant such extension ( CPLR 3211[e] ; see Reyes v. Albertson, 62 A.D.3d 855, 855, 878 N.Y.S.2d 623 [2009] ; Thompson v. Cuadrado, 277 A.D.2d 151, 152, 717 N.Y.S.2d 109 [2000] ). Contrary to defendant's assertions, the decision to proceed pro se for a portion of this action did not prevent him from moving for dismissal of the complaint within the statutorily prescribed time frame and, thus, does not amount to undue hardship (see generally Abitol v. Schiff, 180 Misc.2d 949, 950–951, 691 N.Y.S.2d 753 [1999], mod 276 A.D.2d 571, 714 N.Y.S.2d 880 [2000] ). Therefore, we will not disturb Supreme Court's denial of defendant's cross motion for dismissal of the complaint based upon improper service.

Defendant also challenges Supreme Court's determination to grant plaintiff's second motion for summary judgment. Initially, although successive motions for summary judgment are generally disfavored (see e.g. U.S. Bank N.A. v. Shaughnessy, 178 A.D.3d 1324, 1326, 116 N.Y.S.3d 112 [2019] ; Keating v. Town of Burke, 105 A.D.3d 1127, 1128, 962 N.Y.S.2d 804 [2013] ), we agree with Supreme Court that defendant admitted his debt, his default thereon and his receipt of the 90–day pre-foreclosure notices by failing to respond to the notice to admit (see CPLR 3123[a] ) and that such admissions constituted new evidence permitting the second motion for summary judgment (see Foster v. Kelly, 119 A.D.3d 1250, 1251, 990 N.Y.S.2d 693 [2014] ; Wenger v. Goodell, 288 A.D.2d 815, 816, 733 N.Y.S.2d 523 [2001], lv denied 98 N.Y.2d 605, 746 N.Y.S.2d 279, 773 N.E.2d 1017 [2002] ). Accordingly, we discern no abuse of discretion in Supreme Court's determination to entertain plaintiff's second summary judgment motion (see U.S. Bank N.A. v. Shaughnessy, 178 A.D.3d at 1326, 116 N.Y.S.3d 112 ; Green Harbour Homeowners Assn., Inc. v. Ermiger, 128 A.D.3d 1142, 1143, 8 N.Y.S.3d 705 [2015] ).

Turning to the merits, "[t]o establish entitlement to summary judgment in a foreclosure action, a plaintiff must produce evidence of the mortgage and unpaid note along with proof of the mortgagor's default" ( Wells Fargo Bank, NA v. Ostiguy, 127 A.D.3d 1375, 1376, 8 N.Y.S.3d 669 [2015] ; see Citibank, NA v. Abrams, 144 A.D.3d 1212, 1214, 40 N.Y.S.3d 653 [2016] ). Where, as here, a defendant raises standing as an affirmative defense, the plaintiff must also establish its standing by submitting proof that it was the holder or assignee of both the mortgage and the note at the time that the action was commenced (see Wells Fargo Bank, N.A. v. Pauley, 172 A.D.3d 1559, 1560, 99 N.Y.S.3d 781 [2019] ; U.S. Bank Trust, N.A. v. Moomey–Stevens, 168 A.D.3d 1169, 1171, 91 N.Y.S.3d 788 [2019] ). Because the note is the dispositive instrument conferring standing to foreclose (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ), "[e]ither 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" ( Onewest Bank, F.S.B. v. Mazzone, 130 A.D.3d 1399, 1400, 15 N.Y.S.3d 505 [2015] [internal quotation marks and citations omitted]; see Goldman Sachs Mtge. Co. v. Mares, 166 A.D.3d 1126, 1129, 87 N.Y.S.3d 665 [2018] ).

In support of its motion for summary judgment, plaintiff relied upon defendant's admissions regarding the underlying debt and his default thereon, as well as the affidavits of Diondra Doublin, a document execution specialist for the mortgage loan servicer, and Kyra Schwartz, an...