U.S. Bank Nat'l Ass'n v. Jean-Charles

198 A.D.3d 998

155 N.Y.S.3d 586

U.S. BANK NATIONAL ASSOCIATION, etc., appellant,

v.Jean Franck JEAN–CHARLES, et al., respondents, et al., defendants.

2019–08996

Index No. 511033/14

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

Argued—March 25, 2021

October 27, 2021

Goodwin Procter LLP, New York, NY (Richard A. Sillett of counsel), for appellant.

Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for respondents.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Wavny Toussaint, J.), dated July 10, 2019. The judgment, upon an order of the same court (Noach Dear, J.) dated June 11, 2018, denying the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Jean Franck Jean–Charles and Marie Elvie Prevot and to strike those defendants’ answer and affirmative defenses, after a nonjury trial, is in favor of the defendants and against the plaintiff dismissing the complaint and directing the cancellation of the notice of pendency.

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, that branch of the plaintiff's motion which was for summary judgment dismissing the third affirmative defense of the defendants Jean Franck Jean–Charles and Marie Elvie Prevot, alleging lack of standing, is granted, the order dated June 11, 2018, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for the entry of an amended judgment, inter alia, in favor of the plaintiff and against the defendants, directing the foreclosure sale of the subject property.

In 2014, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendants Jean Franck Jean–Charles and Marie Elvie Prevot (hereinafter together the defendants). Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and to strike their answer and affirmative defenses. The defendants opposed the motion and cross-moved to dismiss the complaint insofar as asserted against them. In an order dated June 11, 2018, the Supreme Court denied the plaintiff's motion and the defendants’ cross motion, concluding only that the plaintiff failed to prove compliance with RPAPL 1304 and that the defendants’ bare denial of receipt of the RPAPL 1304 notices was insufficient to warrant dismissal.

After a nonjury trial, the Supreme Court determined that the plaintiff failed to establish both standing and compliance with RPAPL 1304. In a judgment dated July 10, 2019, the court, among other things, dismissed the complaint. The plaintiff appeals.

The Supreme Court erred in denying that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ third affirmative defense, alleging lack of standing. In support of its motion for summary judgment, the plaintiff submitted, inter alia, the summons and complaint which had a copy of the note annexed to it. This was sufficient, alone, to establish, prima facie, that the plaintiff had standing to commence the action (see Deutsche Bank Trust Co. Ams. v. Marous, 186 A.D.3d 669, 671, 130 N.Y.S.3d 101 ; Wells Fargo Bank, N.A. v. Davis, 181 A.D.3d 890, 893, 122 N.Y.S.3d 103 ; JPMorgan Chase Bank, N.A. v. Weinberger, 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ), and the defendants failed to raise a triable issue of fact in opposition. Accordingly, we modify the order dated June 11, 2018, to grant that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ third affirmative defense. Moreover, the plaintiff established, prima facie, its compliance with the requirements of RPAPL 1303 (see U.S. Bank N.A. v. Ahmed, 174 A.D.3d 661, 664, 106 N.Y.S.3d 78 ) and RPAPL 1306 (see HSBC Bank USA, N.A. v. Bermudez, 175 A.D.3d 667, 669–670, 107 N.Y.S.3d 138 ). In opposition, the defendants failed to raise a triable issue of fact. However, the plaintiff's remaining contentions with regard to its motion for summary judgment are without merit.

"In reviewing a determination made after a nonjury...