Bayview Loan Servicing, LLC v. Caracappa

202 A.D.3d 900

159 N.Y.S.3d 691 (Mem)

BAYVIEW LOAN SERVICING, LLC, respondent,

v.Kathleen M. CARACAPPA, appellant, et al., defendant.

2019–02653

Index No. 1958/16

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

Submitted—October 21, 2021

February 16, 2022

Steven A. Kimmel, Washingtonville, NY, for appellant.

Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Kathleen M. Caracappa appeals from a judgment of foreclosure and sale of the Supreme Court, Orange County (Catherine M. Bartlett, J.), entered January 2, 2019. The judgment of foreclosure and sale, upon an order of the same court dated July 9, 2018, inter alia, denying the motion of the defendant Kathleen M. Caracappa for summary judgment dismissing the complaint insofar as asserted against her and granting those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against that defendant, to dismiss her affirmative defenses and counterclaims, and for an order of reference, and upon an order of the same court dated August 15, 2018, among other things, appointing a referee to compute the amount due to the plaintiff, inter alia, directed the sale of the subject property.

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

In March 2016, the plaintiff commenced this action against the defendant Kathleen M. Caracappa (hereinafter the defendant), and another individual, to foreclose a mortgage on real property located in Harriman. The defendant interposed an answer in which she asserted various affirmative defenses, including that the plaintiff lacked standing and failed to comply with RPAPL 1303, and counterclaims.

In March 2018, the defendant moved for summary judgment dismissing the complaint insofar as asserted against her contending, among other things, that the plaintiff failed to comply with RPAPL 1303. The plaintiff cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to dismiss her affirmative defenses and counterclaims, and for an order of reference. In an order dated July 9, 2018, the Supreme Court, among other things, denied the defendant's motion and granted those branches of the plaintiff's cross motion. In an order dated August 15, 2018, the court, inter alia, appointed a referee to compute the amount due to the plaintiff. In a judgment of foreclosure and sale entered January 2, 2019, the court, among other things, directed the sale of the subject property. The defendant appeals.

A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (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 ). "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" ( Dyer Trust 2012–1 v. Global World Realty, Inc., 140 A.D.3d 827, 828, 33 N.Y.S.3d 414 ). "[A]n assignment of a note and mortgage need not be in writing and can be effectuated by physical delivery" ( Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 280, 926 N.Y.S.2d 532 ; see Aurora Loan Servs.,...