Citibank, N.A. v. Herman

215 A.D.3d 626

187 N.Y.S.3d 686

CITIBANK, N.A., etc., respondent,

v.Barbara HERMAN, appellant, et al., defendants.

2019–07567

Index No. 608313/15

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

Argued—May 5, 2022

April 5, 2023

Abrams Fensterman, LLP, Lake Success, NY (Christopher A. Gorman of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J. Flickinger of counsel), for respondent.

COLLEEN D. DUFFY, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Barbara Herman appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated May 15, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were to strike the affirmative defenses of the defendant Barbara Herman alleging lack of standing and failure to comply with RPAPL 1304, and denied that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was to strike the affirmative defense of the defendant Barbara Herman alleging that the plaintiff failed to comply with RPAPL 1304, 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 defendant Barbara Herman.

In 2009, the plaintiff commenced an action against, among others, the defendants Thomas Herman and Barbara Herman (hereinafter the defendant, and together with Thomas Herman, the Hermans) to foreclose a mortgage on certain residential property located in Patchogue. The Hermans moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them for lack of standing. By order dated April 23, 2013, the Supreme Court, among other things, denied that branch of the motion. In a decision and order dated February 4, 2015, this Court reversed the order insofar as appealed from and, inter alia, granted that branch of the Hermans’ motion which was for summary judgment dismissing the complaint insofar as asserted against them for lack of standing (see Citibank, N.A. v. Herman, 125 A.D.3d 587, 3 N.Y.S.3d 379 ).

Thereafter, in July 2015, the plaintiff commenced this second action against the Hermans, among others, to foreclose the mortgage. In an order dated February 26, 2016, the Supreme Court, inter alia, granted the plaintiff's cross-motion to discontinue the action against Thomas Herman, who had died prior to the commencement of the action. Thereafter, the defendant interposed an answer in which she asserted various affirmative defenses, including lack of standing and failure to comply with RPAPL 1304.

Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her, among other things, for lack of standing and failure to comply with RPAPL 1304. In an order dated May 15, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were to strike the defendant's affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304, and denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, with leave to renew. The court determined that the plaintiff had failed to submit sufficient evidentiary proof of the alleged default in payment, but had established its standing and compliance with RPAPL 1304. In addition, the court denied the defendant's cross-motion. The defendant appeals.

Contrary to the defendant's contention, the plaintiff established, prima facie, its standing to commence this action by submitting a copy of the note, endorsed in blank, that was annexed to the complaint at the time the action was commenced (see U.S. Bank Trust, N.A. v. Casey, 204 A.D.3d 863, 164 N.Y.S.3d 481 ; Wells Fargo Bank, NA v. Moussa, 201 A.D.3d 1010, 1011–1012, 157 N.Y.S.3d 767 ). In opposition to the plaintiff's prima facie showing as to its standing, the defendant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was to strike the defendant's affirmative defense alleging lack of standing.

However, the Supreme Court should not have granted that branch of the plaintiff...