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

• Decision Date: 27 December 2017
• Docket Number: Index No. 23598/11,2015–11067
• Citation: 68 N.Y.S.3d 120,156 A.D.3d 934
• Parties: US BANK NATIONAL ASSOCIATION, etc., respondent, v. John COPPOLA, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 934

68 N.Y.S.3d 120

US BANK NATIONAL ASSOCIATION, etc., respondent,

v.John COPPOLA, appellant, et al., defendants.

2015–11067

Index No. 23598/11

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

Submitted—October 6, 2017

December 27, 2017

Rubin & Licatesi, P.C., Garden City, N.Y. (Richard H. Rubin and Amy J. Zamir of counsel), for appellant.

Hogan Lovells U.S. LLP, New York, N.Y. (Benjamin P. Jacobs, David Dunn, and Chava Brandriss of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant John Coppola appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Modica, J.), entered July 10, 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 affirmed insofar as appealed from, 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 Central Mtge. Co. v. Jahnsen , 150 A.D.3d 661, 662–663, 56 N.Y.S.3d 107 ; Deutsche Bank Trust Co. Ams. v. Garrison , 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ; Wells Fargo Bank, N.A. v. Arias , 121 A.D.3d 973, 973–974, 995 N.Y.S.2d 118 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (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 ; Central Mtge. Co. v. Jahnsen , 150 A.D.3d at 663, 56 N.Y.S.3d 107 ; U.S. Bank, N.A. v. Collymore , 68 A.D.3d 752, 753–754, 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" ( Central Mtge. Co. v. Jahnsen , 150 A.D.3d at 663, 56 N.Y.S.3d 107 [internal quotation marks omitted]; see Deutsche Bank Trust Co. Ams. v. Garrison , 147 A.D.3d at 726, 46 N.Y.S.3d 185 ).

Here, the note, indorsed in blank, was annexed to the complaint at the time the action was commenced, which was sufficient to establish standing (see Deutsche Bank Natl. Trust Co. v. Carlin , 152 A.D.3d 491, 492, 61 N.Y.S.3d 16 ; U.S. Bank N.A. v. Saravanan , 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ). The plaintiff further sustained its burden of demonstrating its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and proof of the appellant's default in repaying the mortgage loan (see U.S. Bank N.A. v. Saravanan , 146 A.D.3d at 1011, 45 N.Y.S.3d 547 ).

In opposition, the appellant failed to raise a triable issue of fact and failed to demonstrate his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. The appellant's contention that the affidavit of the vice president of loan documentation for the plaintiff's loan servicing agent was insufficient to establish standing, since it failed to give factual details as to the physical delivery of the note, is without merit. "There is simply...