Ridgewood Sav. Bank v. Glickman

2021 NY Slip Op 04985

Ridgewood Savings Bank, respondent, v. Mark Glickman, et al., appellants, et al., defendants.

No. 2018-11354, Index No. 5812/14

Supreme Court of New York, Second Department

September 15, 2021

Marc P. Gershman, Mineola, NY, for appellants.

Cullen and Dykman LLP, Garden City, NY (Marianne McCarthy and Cecilia Ehresman of counsel), for respondent.

CHERYL E. CHAMBERS, J.P. LEONARD B. AUSTIN ROBERT J. MILLER PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendants Mark Glickman and Susan Glickman appeal from a judgment of foreclosure and sale of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 12, 2018. The judgment of foreclosure and sale, upon an order of the same court entered May 12, 2017, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Mark Glickman and Susan Glickman, to strike those defendants' answer, and for an order of reference, and denying those defendants' cross motion for leave to amend their answer, and upon an order of the same court entered June 12, 2018, granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, directed the sale of the subject property.

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

On November 5, 2004, the defendants Mark Glickman and Susan Glickman (hereinafter together the defendants) executed a note in the sum of $600, 000 in favor of The New York Mortgage Company, LLC (hereinafter NYMC), which was secured by a mortgage held by Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for NYMC, on certain property owned by the defendants. In May 2006, the defendants obtained a second mortgage loan in the sum of $41.25 from the plaintiff and entered into a consolidation extension, and modification agreement (hereinafter the CEMA) pursuant to which the first and second notes and mortgages were consolidated into a single lien in the sum of $600, 000. On August 18, 2006, MERS, as nominee for NYMC, executed a satisfaction of the first mortgage, which was filed with the Nassau County Clerk.

In June 2014, the plaintiff commenced this action against, among others, the defendants to foreclose the consolidated mortgage and to cancel and expunge the satisfaction of the first mortgage. The defendants interposed an answer raising various affirmative defenses, including lack of standing and the filing of the satisfaction of mortgage. 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. The defendants cross-moved for leave to amend their answer. In an order entered May 12, 2017, the Supreme Court granted the plaintiff's motion and denied the defendants' cross motion. Thereafter, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. In an order entered June 12, 2018, the court granted the plaintiff's motion. In a judgment of foreclosure and sale entered June 12, 2018, the court directed the sale of the subject property. The defendants appeal.

"Where as here, 'the issue of standing is raised by a defendant in a mortgage foreclosure action, a plaintiff must prove its standing in order to be entitled to relief against that defendant'" (U.S. Bank N.A. v Bochicchio, 179 A.D.3d 1133, 1134, quoting Bank of N.Y. Mellon v Gordon, 171 A.D.3d 197, 203). "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" (U.S. Bank N.A. v McEntee, 176 A.D.3d 1136, 1138). "A 'holder' is the 'person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession'" (U.S. Bank N.A. v Baer, 179 A.D.3d 1130, 1132, quoting UCC 1-201[b][21][A]; see UCC 3-301).

Here contrary to the defendants' contention, the plaintiff established,...