Deutsche Bank Nat'l Trust Co. v. Gulati

188 A.D.3d 999

137 N.Y.S.3d 402

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Respondent,

v.Deepak GULATI, et al., Appellants, et al., Defendants.

2017–09698

2018–09909

Index No. 18725/10

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

Argued—December 17, 2019

November 18, 2020

Beth E. Goldman, New York, N.Y. (Julie Anne Howe and Daniel DuBois of counsel), for appellants.

Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Loretta Carty of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Deepak Gulati and Geeta Gulati appeal from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 13, 2017, and (2) a judgment of foreclosure and sale of the same court entered May 22, 2018. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Deepak Gulati and Geeta Gulati, to strike those defendants' answer, and for an order of reference. The judgment of foreclosure and sale, upon the order, inter alia, confirmed the referee's report and directed the sale of the subject property.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment of foreclosure and sale is reversed, on the law, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Deepak Gulati and Geeta Gulati, to strike those defendants' answer, and for an order of reference are denied, and the order is modified accordingly; and it is further,

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

The appeal from the order entered June 13, 2017, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In September 2010, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendants Deepak Gulati and Geeta Gulati (hereinafter together the defendants). The defendants interposed an answer wherein they asserted the affirmative defense that the plaintiff lacked standing to commence the action. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike the defendants' answer, and for an order of reference. In an order entered June 13, 2017, the Supreme Court granted the plaintiff's motion. On May 22, 2018, the court entered a judgment of foreclosure and sale, inter alia, confirming the referee's report and directing the sale of the subject property. The defendants appeal.

Where, as here, the plaintiff's standing has been placed in issue by a defendant's answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment (see U.S. Bank N.A. v. Echevarria, 171 A.D.3d 979, 980, 97 N.Y.S.3d 708 ; Nationstar Mtge., LLC v. Medley, 168 A.D.3d 959, 93 N.Y.S.3d 69 ). A plaintiff establishes its standing to foreclose a mortgage "by demonstrating that, when the action was commenced, it was either the holder of, or the assignee of, the underlying note" ( Wells Fargo Bank, N.A. v. Gonzalez, 174 A.D.3d 555, 556, 104 N.Y.S.3d 167 ; 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 ... is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" ( JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 644–645, 37 N.Y.S.3d 286 [internal quotation marks omitted] ). "The attachment of a properly endorsed note to the complaint may be sufficient to establish, prima facie, that the plaintiff is the holder of the note at the time of...