Wells Fargo Bank, Nat'l Ass'n v. Harrison

• Decision Date: 25 November 2020
• Docket Number: Index No. 69968/14,2018–12056
• Citation: 188 A.D.3d 1298,132 N.Y.S.3d 789 (Mem)
• Parties: WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent, v. Simon HARRISON, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1298

132 N.Y.S.3d 789 (Mem)

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent,

v.Simon HARRISON, et al., appellants, et al., defendants.

2018–12056

Index No. 69968/14

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

Argued—October 6, 2020

November 25, 2020

David Lee Heller, Sag Harbor, NY, for appellants.

RAS Boriskin, LLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for respondent.

JOSEPH J. MALTESE, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendants Simon Harrison and Stephanie E. Harrison appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Suffolk County (Robert E. Quinlan, J.), entered August 8, 2018. The order and judgment of foreclosure and sale, upon an order of the same court dated November 27, 2017, inter alia, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Simon Harrison and Stephanie E. Harrison, to strike those defendants' answer, and for an order of reference, inter alia, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

On December 5, 2006, the defendant Simon Harrison executed a note in the sum of $1,000,000 in favor of Mortgage Lenders Network USA, Inc. The note was secured by a mortgage on residential property located in Sag Harbor. The note was delivered to the plaintiff on February 12, 2014.

On November 21, 2014, the plaintiff commenced this action, inter alia, to foreclose the mortgage against, among others, Simon Harrison and the defendant Stephanie E. Harrison (hereinafter together the Harrison defendants), who owned the property with Simon Harrison but was not a party to the note. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the Harrison defendants, to strike their answer, and for an order of reference. In an order dated November 27, 2017, the Supreme Court granted the plaintiff's motion and referred the matter to a referee to compute the amount due to the plaintiff. Subsequently, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The motion was unopposed. In an order and judgment of foreclosure and sale entered August 8, 2018, the court, inter alia, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property. The Harrison defendants appeal from the order and judgment of foreclosure and sale.

Although the order and judgment of foreclosure and sale was entered upon the default of the Harrison defendants, the Harrison defendants may obtain review of "matters which were the subject of contest below" ( James v. Powell, 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 ; see Wells Fargo Bank, N.A. v. Davis, 181 A.D.3d 890, 122 N.Y.S.3d 103 ; Hegarty v. Ballee, 18 A.D.3d 706, 706, 795 N.Y.S.2d 747 ). The Harrison defendants opposed the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against them, which the Supreme Court granted in the order dated November 27, 2017. Thus, appellate review of the order dated November 27, 2017, is permitted.

To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see U.S. Bank N.A. v. Mezrahi, 169 A.D.3d 952, 953, 94 N.Y.S.3d 611 ; Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459 ). Additionally, where, as here, a defendant places standing in issue, the plaintiff must prove its standing in order to be entitled to relief (see U.S. Bank N.A. v. Mezrahi, 169 A.D.3d at 953, 94 N.Y.S.3d 611 ; Deutsche Bank Natl....