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

• Decision Date: 23 August 2017
• Docket Number: 2015-06718. Index No. 13944/13.
• Citation: 153 A.D.3d 879,60 N.Y.S.3d 343
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Warren SABLOFF, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 879

60 N.Y.S.3d 343

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Warren SABLOFF, appellant, et al., defendants.

2015-06718. Index No. 13944/13.

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

Aug. 23, 2017.

Mark D. Mermel, Lake Success, NY, for appellant.

Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Joseph F. Battista and Barry Weiss of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JEFFREY A. COHEN, and VALERIE BRATHWAITE NELSON, JJ.

In an action to foreclose a mortgage, the defendant Warren Sabloff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April 14, 2015, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him, and denied his cross motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Warren Sabloff and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and a subsequent order of the same court entered August 16, 2016, is vacated.

In 2013, the plaintiff commenced this action to foreclose a mortgage given by the defendants Warren Sabloff (hereinafter Sabloff) and Ellen Sabloff as security for a note executed by Sabloff in the sum of $1,500,000. In his answer, Sabloff asserted the affirmative defenses of, inter alia, lack of standing and failure to give notice of default as required by the terms of the mortgage. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint, and Sabloff cross-moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court granted the plaintiff's motion and denied the cross motion, and Sabloff appeals.

"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" ( Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ; see Deutsche Bank Natl. Trust Co. v. Brewton, 142 A.D.3d 683, 684, 37 N.Y.S.3d 25 ). Where standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475, affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363 ). A plaintiff in a mortgage foreclosure action has standing where it is the holder of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank N.A. v. Handler, 140 A.D.3d 948, 949, 34 N.Y.S.3d 463 ). Either a written assignment of the underlying note or the physical delivery of the note is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see U.S. Bank, N.A. v. Zwisler, 147 A.D.3d 804, 805, 46 N.Y.S.3d 213 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ).

Here, the plaintiff demonstrated, prima facie, that it was a holder of the note at the time the action was commenced, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 45 N.Y.S.3d 547 ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 45 N.Y.S.3d 189 ; Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 39 N.Y.S.3d 491 ). In opposition,...