HSBC Bank USA, N.A. v. Blair-WalkerHSBC Bank USA, N.A. v. Blair-Walker
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P. ANGELA G. IANNACCI ROBERT J. MILLER LINDA CHRISTOPHER, JJ.
Elaine Blair-Walker, named herein as Elaine E. Blair-Walker, St. Albans, NY, appellant pro se.
Stern & Eisenberg, P.C., Depew, NY (Anthony P. Scali, Margaret J. Cascino, and Arsenio Rodriguez of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Elaine E. Blair-Walker appeals from (1) an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), dated April 28, 2017, (2) an order of the same court entered August 17, 2018, and (3) an order and judgment of foreclоsure and sale (one paper) of the same court entered January 31, 2019. The order dated April 28, 2017, 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 Elaine E. Blair-Walker and for an order of reference and denied that defendant‘s cross motion to strike the plaintiff‘s affidavit of merit. The order entered August 17, 2018, granted the plaintiff‘s motion to confirm the referee‘s report and for a judgment of foreclosure and sale and denied the cross motion of the defendant Elaine E. Blair-Walker to reject the referee‘s report. The order and judgment of foreclosure and sale entered January 31, 2019, upon the order dated April 28, 2017, and the order entered August 17, 2018, inter alia, сonfirmed the referee‘s report and directed the sale of the real property at issue.
DECISION & ORDER
Now, upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeals, it is
ORDERED that the motion to dismiss the appeal from the order dated April 28, 2017, is granted; and it is further,
ORDERED that the appeal from the order dated April 28, 2017, is dismissed; and it is further,
ORDERED that the appeal from the order entered August 17, 2018, is dismissed; and it is further,
ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeals from the order dated April 28, 2017, and the order entered August 17, 2018, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from those orders are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and salе (see
In November 2015, the plaintiff commenced this action against the defendant Elaine E. Blair-Walker (hereinafter the defendant), among others, to foreclose a mortgage securing certain real property owned by the defendant in Queens (hereinafter the premises). The defendant interposed an answer asserting, inter alia, the affirmative defense of lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as аsserted against the defendant
Generally, in moving for summary judgment in an action to foreclose a mortgage, “a plaintiff establishes its prima fаcie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default” (Bank of Am., N.A. v Montagnese, 198 AD3d 850, 851 [internal quotation marks omitted]; see U.S. Bank, N.A. v Zientek, 192 AD3d 1189, 1190). Where, as here, а plaintiff‘s standing to commence a foreclosure action is placed in issue by a defendant, the plaintiff must prove its standing to be entitled to relief against the defendant (see Bank of Am., N.A. v Montagnese, 198 AD3d at 852). “‘A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note аt the time the action is commenced‘” (U.S. Bank N.A. v Bochicchio, 179 AD3d 1133, 1134-1135, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 203). “‘Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement оf the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident‘” (Bank of Am., N.A. v Montagnese, 198 AD3d at 852, quoting U.S. Bank N.A. v Bochicchio, 179 AD3d at 1135).
Here, the plaintiff established, prima facie, its standing to commence the action by demonstrating that it had physical possession of the note at the time it commenced the action, as it attached a copy of the note, endorsed in blank, to the summons and complaint (see Bank of Am., N.A. v Montagnese, 198 AD3d at 852; U.S. Bank N.A. v Bochicchio, 179 AD3d at 1135). In opposition, the defendant failed to rаise a triable issue of
“‘The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility‘” (U.S. Bank N.A. v Morton, 196 AD3d 715, 717, quoting 33-37 Farrington, LLC v Global Universal Group, Ltd., 165 AD3d 1018, 1019-1020). “‘The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as fаr as Judges and courts of co-ordinate jurisdiction are concerned‘” (Matter of Koegel, 184 AD3d 764, 765, affd ___ NY3d ___, 2021 NY Slip Op 07058, quoting Martin v City of Cohoes, 37 NY2d 162, 165). The doctrine “‘applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision‘” (Flatbush Two, LLC v Morales, 190 AD3d 826, 827, quoting Baldasano v Bank of N.Y., 199 AD2d 184, 185).
The Supreme Court properly denied the defendant‘s cross motion to reject the referee‘s repоrt in its August 2018 order as the issues as to standing and the affidavit of merit, which the defendant raised in support of her cross motion, were precluded by the doctrine of the law of the case since the court had properly decided those issues on their merits in its April 2017 order (see e.g. Matter of Koegel, 184 AD3d at 766). Moreover, the referee‘s determinatiоn as to the amount due to the plaintiff was supported by the record and, under the circumstances of this case, the referee was not required to cоnduct a hearing before issuing the report (see Nationstar Mtge., LLC v Paganini, 191 AD3d 790, 794; Bank of N.Y. Mellon v Tedesco, 174 AD3d 490, 492). Accordingly, the court also properly granted the plaintiff‘s motion to confirm the referee‘s report and for a judgment of foreclosure and sale.
The parties’ remaining contentions either are not properly before this Court, are without merit, or need not be reached in light of our determination.
DUFFY, J.P., IANNACCI, MILLER and CHRISTOPHER, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court