U.S. Bank v. Haber

2024 NY Slip Op 04158

U.S. Bank National Association, etc., respondent, v. Laura Haber, etc., appellant, et al., defendant.

Nos. 2022-08553, 2022-08742, Index No. 4487/07

Supreme Court of New York, Second Department

August 7, 2024

Haber & Haber, LLP, Garden City, NY (Stephen D. Haber of counsel), for appellant.

Friedman Vartolo LLP, New York, NY (Ronald P. Labeck of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, BARRY E WARHIT, CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Laura Haber appeals from two orders of the Supreme Court, Nassau County (David P. Sullivan, J.), both dated September 28, 2022. The first 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 defendant Laura Haber, to strike so much of the affirmative defenses as was asserted on behalf of that defendant, and for an order of reference. The second order, insofar as appealed from granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

On June 8, 2005, Laura Haber and Michael Haber (hereinafter together the Habers) executed a note in favor of nonparty WMC Mortgage Corp. (hereinafter WMC) in the sum of $413,250, which was secured by a mortgage on certain property located in Levittown. In March 2007, the plaintiff, WMC's alleged successor in interest, commenced this action against the Habers, among others, to foreclose the mortgage. The Habers interposed an answer asserting various affirmative defenses, including that the plaintiff lacked standing.

In an order entered November 23, 2016, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference. In a decision and order dated March 6, 2019, this Court determined that the Supreme Court improperly granted those branches of the plaintiff's motion which were for summary judgment on the complaint and for an order of reference, as the plaintiff failed to submit sufficient evidence to demonstrate that it had standing to commence the action (see U.S. Bank N.A. v Haber, 170 A.D.3d 775, 776).

In December 2021, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Laura Haber, to strike so much of the affirmative defenses as was asserted on behalf of that defendant, and for an order of reference. In an order dated September 28, 2022, the Supreme Court, among other things, granted those branches of the plaintiff's motion. In a second order, also dated September 28, 2022, the court, inter alia, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. Laura Haber appeals from both orders.

"Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts" (Graham v City of New York, 136 A.D.3d 747, 748; see Old Crompond Rd., LLC v County of Westchester, 201 A.D.3d 806, 808; Aurora Loan Services, LLC v Yogev, 194 A.D.3d 996, 997). Under the particular circumstances of this case, the Supreme Court providently exercised its discretion in entertaining the plaintiff's successive motion for summary judgment (see Old Crompond Rd., LLC v County of Westchester, 201 A.D.3d at 808; US Bank N.A. v Weinman, 195 A.D.3d 976, 977; Aurora Loan Servs., LLC v Yogev, 194 A.D.3d at 997).

"In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default" (Wilmington Sav. Fund Socy. v Theagene, 201 A.D.3d 1015, 1016; see HSBC Bank USA, N.A. v Bhatti, 186 A.D.3d 817, 819; Aurora Loan Servs., LLC v Baritz, 144 A.D.3d 618, 619). Additionally, "where, as here, the plaintiff's standing has been placed in issue by the defendant's answer, the plaintiff must prove its standing as part of its prima facie showing" (Wilmington Sav. Fund Socy. v Theagene, 201 A.D.3d at 1016; see Nationstar Mtge., LLC v Shivers, 179 A.D.3d 931, 932). 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 (see Aurora Loan Servs., LLC v Taylor, 25 N.Y.3d 355, 361-362). "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" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 A.D.3d 827, 828; see Wilmington Sav. Fund Socy. v Theagene, 201 A.D.3d at 1016).

Here the plaintiff established, prima facie, its standing to commence the action through the affidavit...