CitiMortgage, Inc. v. McKinney

144 A.D.3d 1073

42 N.Y.S.3d 302

2016 N.Y. Slip Op. 08037

CITIMORTGAGE, INC., appellant,

v.Gareth P. McKINNEY, respondent, et al., defendants.

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

Nov. 30, 2016.

Akerman LLP, New York, NY (Jordan M. Smith of counsel), for appellant.

John R. McEntee, Flushing, NY, for respondent.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY and FRANCESCA E. CONNOLLY, JJ.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Wade, J.), dated March 1, 2016, which denied its motion for summary judgment on the complaint and for an order of reference.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint and for an order of reference is granted.

The plaintiff commenced this action to foreclose a mortgage. The plaintiff appeals from an order denying its motion for summary judgment on the complaint and for an order of reference.

“ ‘Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ ” (North Am. Sav. Bank, FSB v. Esposito–Como, 141 A.D.3d 706, 708, 35 N.Y.S.3d 491, quoting Plaza Equities, LLC v. Lamberti, 118 A.D.3d 688, 689, 986 N.Y.S.2d 843 ). “Additionally, where, as here, the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing” (Flagstar Bank, FSB v. Mendoza, 139 A.D.3d 898, 899, 32 N.Y.S.3d 278 ). “A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” ( Federal Natl. Mtge. Assn. v. Yakaputz II, Inc., 141 A.D.3d 506, 507, 35 N.Y.S.3d 236 ). “ ‘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’ ” (id. at 507, 35 N.Y.S.3d 236, quoting U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 754, 890 N.Y.S.2d 578 ).

Here, in support of its motion for summary judgment, the plaintiff submitted the mortgage, the unpaid note, and evidence of default. In addition, with respect to standing, the plaintiff submitted the affidavit of Natasha Stringer, who was employed by the plaintiff as a business operations analyst. Based on some of the plaintiff's business records, which were attached to the affidavit, Stringer asserted that the plaintiff had been in physical possession of the underlying note, which had been endorsed to it, since June 10, 2008, long before the commencement of this action in October 2014. Stringer further asserted that she was personally familiar with the plaintiff's record-keeping practices and procedures, the records were made in the regular course of business, it was the regular course of the plaintiff's business to make them, and the records were made at or near the time of the occurrence of the matters set forth in the records. This was sufficient to establish, prima facie, that the plaintiff was the holder of the note at the time the action was commenced (see CPLR 4518[a] ; Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 359–362, 12 N.Y.S.3d 612, 34...