Deutsche Bank Nat'l Trust Co. v. Giuliani

192 A.D.3d 865

140 N.Y.S.3d 740 (Mem)

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Michael GIULIANI, et al., defendants,Christine Manuel, etc., appellant.

2019–00373

2019–00380

2019–07203

Index No. 52684/17

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

Submitted—February 9, 2021

March 17, 2021

Deren, Genett & Macreery, P.C., Katonah, N.Y. (John Brian Macreery of counsel), for appellant.

Leopold & Associates, PLLC (Saul O. Leopold and Greenberg Traurig, LLP, New York, N.Y. [Steven Lazar and Patrick G. Broderick ], of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Christine Manuel appeals from (1) an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated December 14, 2018, (2) an order of the same court also dated December 14, 2018, and (3) an order of the same court dated May 30, 2019. The first order dated December 14, 2018, 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 defendant Christine Manuel, to strike her answer, and for an order of reference, and denied that defendant's cross motion for leave to serve and file a second amended answer. The second order dated December 14, 2018, 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 defendant Christine Manuel, to strike her answer, and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. The order dated May 30, 2019, denied the motion of the defendant Christine Manuel, in effect, for leave to renew and reargue her opposition to the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant, to strike her answer, and for an order of reference, and her cross motion for leave to serve and file a second amended answer.

ORDERED that the appeal from the order dated May 30, 2019, is dismissed; and it is further,

ORDERED that the orders dated December 14, 2018, are affirmed insofar as appealed from; and it is further,

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

The plaintiff established its standing to commence this action by demonstrating that it was the holder of the underlying note when the action was commenced (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 360–361, 12 N.Y.S.3d 612, 34 N.E.3d 363 ) by submitting a copy of the complaint with attachments, including a copy of the note endorsed in blank (see HSBC Bank USA, N.A. v. Desir, 188 A.D.3d 657, 134 N.Y.S.3d 398 ; Bank of N.Y. Mellon v. Viola, 181 A.D.3d 767, 122 N.Y.S.3d 55 ). There is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (see UCC 3–204 ; Aurora Loan Servs., LLC v. Taylor, 25...