Wells Fargo Bank, N.A. v. Rooney

• Court: New York Supreme Court — Appellate Division
• Citation: Wells Fargo Bank, N.A. v. Rooney, 2015 NY Slip Op 7833, 132 A.D.3d 980, 19 N.Y.S.3d 543 (N.Y. App. Div. 2015)
• Decision Date: 28 October 2015
• Parties: WELLS FARGO BANK, N.A., respondent, v. Timothy M. ROONEY, appellant, et al., defendants.

132 A.D.3d 980

19 N.Y.S.3d 543

2015 N.Y. Slip Op. 07833

WELLS FARGO BANK, N.A., respondent,

v.Timothy M. ROONEY, appellant, et al., defendants.

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

Oct. 28, 2015.

Timothy M. Rooney, Pawling, N.Y., appellant pro se.

Hogan Lovells U.S. LLP, New York, N.Y. (Lisa J. Fried, Stacey A. Lara, and Heather R. Gushueof counsel), for respondent.

Opinion

In an action to foreclose a mortgage, the defendant Timothy M. Rooney appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Rosa, J.), dated April 15, 2013, as granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference, (2) from a second order of the same court, also dated April 15, 2013, which denied his motion, in effect, to vacate an order of the same court (DiBella, J.), dated December 19, 2012, which granted the plaintiff's unopposed motion, inter alia, for leave to serve and file an amended complaint, and (3), as limited by his brief, from so much of an order of the same court dated August 28, 2013, as denied that branch of his motion which was for leave to renew his opposition to those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference or, in the alternative, pursuant to CPLR 5015(a)(3)and (a)(4), in effect, to vacate so much of the order dated April 15, 2013, as granted those branches of the plaintiff's motion.

ORDERED that the first order dated April 15, 2013, and the order dated August 28, 2013, are affirmed insofar as appealed from; and it is further,

ORDERED that the second order dated April 15, 2013, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

“ ‘In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default’ ” (Bayview Loan Servicing, LLC v. 254 Church St., LLC,129 A.D.3d 650, 650, 9 N.Y.S.3d 589, quoting Wells Fargo Bank, N.A. v. Webster,61 A.D.3d 856, 856, 877 N.Y.S.2d 200; see Citimortgage, Inc. v. Chow Ming Tung,126 A.D.3d 841, 842, 7 N.Y.S.3d 147; Aurora Loan Servs., LLC v. Enaw,126 A.D.3d 830, 7 N.Y.S.3d 146). “Where, as here, the plaintiff's standing to commence the action is placed in issue by a defendant, the plaintiff must ultimately establish its standing to be entitled to relief” (Citimortgage, Inc. v. Chow Ming Tung,126 A.D.3d at 842, 7 N.Y.S.3d 147; see Loancare v. Firshing,130 A.D.3d 787, 14 N.Y.S.3d 410; Wachovia Mtge. Corp. v. Lopa,129 A.D.3d 830, 13 N.Y.S.3d 97). 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,114 A.D.3d 627, 980 N.Y.S.2d 475, affd.25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363). “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” (U.S. Bank, N.A. v. Collymore,68 A.D.3d 752, 754, 890 N.Y.S.2d 578; see Emigrant Mtge. Co., Inc. v. Persad,117 A.D.3d 676, 677, 985 N.Y.S.2d 608; Bank of N.Y. Mellon v. Gales,116 A.D.3d 723, 724, 982 N.Y.S.2d 911).

Here, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against the defendant Timothy M. Rooney, to strike Rooney's answer, and for an order of reference. Contrary to Rooney's assertion, the plaintiff established, prima facie, its entitlement to judgment as a matter of law by demonstrating its standing as the holder of the note and mortgage by submitting the affidavit of Alejandro E. Roedel, a vice president of loan documentation for the plaintiff, who established that the plaintiff had physical possession of the note prior to the commencement of the action (see Aurora Loan Servs., LLC v. Taylor,25 N.Y.3d 355, 361, 12 N.Y.S.3d 612, 34 N.E.3d 363; HSBC Bank USA, N.A., v. Spitzer,131 A.D.3d 1206, 18 N.Y.S.3d 67, 2015 N.Y. Slip Op. 07008 [2d Dept.2015]; Wells Fargo Bank, N.A. v. Arias,121 A.D.3d 973, 974, 995 N.Y.S.2d 118; Kondaur Capital Corp. v. McCary,115 A.D.3d 649, 650, 981 N.Y.S.2d 547). The plaintiff also produced copies of the mortgage, the unpaid note, and Roedel's affidavit, attesting to Rooney's failure to make payments due under the mortgage (see Emigrant Bank v. Larizza,129 A.D.3d 904, 13 N.Y.S.3d 129). In opposition, Rooney failed to raise a triable issue of fact.

The Supreme Court providently exercised its discretion in denying that branch of Rooney's motion which was for leave to renew his opposition to those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]). “The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion” (Deutsche Bank Trust Co. v. Ghaness,100 A.D.3d 585, 586, 953 N.Y.S.2d 301; see Rowe v. NYCPD,85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121). “ ‘However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented’ ” (Cioffi v. S.M. Foods, Inc.,129 A.D.3d 888, 891, 10 N.Y.S.3d 620, quoting Deutsche Bank Trust Co. v. Ghaness,100 A.D.3d at 586, 953 N.Y.S.2d 301).

Here, Rooney failed to establish that the alleged new evidence was not available at the time of the original motion. Even assuming he had a reasonable justification for failing to submit this evidence in opposition to the original motion, he failed to demonstrate that it would have changed the prior determination (see Matter of O'Gorman v. O'Gorman,122 A.D.3d 744, 745, 995 N.Y.S.2d 230; Williams v. Nassau County Med. Ctr.,37 A.D.3d 594, 829 N.Y.S.2d 645; Giovanni v. Moran,34 A.D.3d 733, 734, 823 N.Y.S.2d 911).

Rooney's contention that so much of the order of the Supreme Court, Dutchess County, dated April 15, 2013, as granted those branches of the plaintiff's motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference, should be vacated pursuant to CPLR 5015(a)(3)is also without merit. Rooney's “[c]onclusory allegations are not sufficiently indicative of ‘fraud, misrepresentation, or other misconduct’ to warrant...