Nationstar Mtge., LLC v. Koznitz I, LLCNationstar Mtge., LLC v. Koznitz I, LLC
Solomon Rosengarten, Brooklyn, NY, for appellant.
McCalla Raymer Leibert Pierce, New York, NY (David Gantz of counsel), for respondent.
DECISION & ORDER
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting those branches of the plaintiff‘s motion which were for summary judgment on the complaint insofar as asserted against the defendant Koznitz I, LLC, and for an order of reference, and referring the matter to a referee to ascertain and compute the amount due to the plaintiff, and substituting therefor a provision denying those branches of the motion, and (2) by deleting the provision thereof granting that branch of the plaintiff‘s motion which was to strike the answer of the defendant Koznitz I, LLC, and substituting therefor a provision granting that branch of the motion to the extent of striking so much of the answer as asserted the affirmative defense of noncompliance with
On August 18, 2008, Mohammed Alam executed a note in favor of AmTrust Bank in the principal sum of $533,850. The note was secured by a mortgage on residential property in East Elmhurst (hereinafter the subject property), and was signed by electronic signature. Alam allegedly defaulted by failing to make the payment due May 1, 2009, and all payments thereafter. By deed dated June 28, 2013, Alam transferred the subject property to the defendant Koznitz I, LLC (hereinafter Koznitz).
In January 2015, the plaintiff commenced this action to foreclose the mortgage against Alam, among others. In January 2017, the plaintiff served a supplemental summons and amended complaint adding Koznitz as a defendant and striking Alam as a defendant. Koznitz interposed an answer in which it asserted various affirmative defenses, including lack of standing and noncompliance with
The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against Koznitz, to strike its answer, and for an order of reference. Koznitz opposed the motion. In an order dated January 2, 2020, the Supreme Court, upon a decision dated October 21, 2019, inter
“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (U.S. Bank N.A. v Ramanababu, 202 AD3d 1139, 1141 [internal quotation marks omitted]). “A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form” (BNH Milf, LLC v Milford St. Props., LLC, 192 AD3d 960, 962 [internal quotation marks omitted]).
Here, in support of its motion, the plaintiff submitted, among other things, the affidavit of Christy Vieau, a document execution associate for the plaintiff, who, based upon her review of business records, attested to Alam‘s default in payment. While Vieau made the requisite showing that she was familiar with the plaintiff‘s record-keeping practices and procedures (see
The plaintiff also failed to establish, prima facie, its standing to commence the action. Where, as here, the plaintiff‘s standing has been placed in issue by the defendants’ answer, the plaintiff must prove its standing as part of its prima facie showing (see Nationstar Mtge., LLC v Shivers, 179 AD3d 931, 932). “A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint” (Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 868; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362). A plaintiff may establish its standing by “demonstrating that the note was in its possession prior to the commencement of the action, as evidenced by its attachment of the endorsed note to the summons and complaint at the time the action was commenced” (U.S. Bank N.A. v Saravanan, 146 AD3d 1010, 1011). Here, the plaintiff contends that it
The plaintiff established, prima facie, that there was no merit to Koznitz‘s second affirmative defense, alleging that the plaintiff failed to comply with
The plaintiff‘s remaining contentions, raised for the first time on appeal, are not properly before this Court (see Citimortgage, Inc. v Weaver, 163 AD3d 625, 626).
Since the plaintiff failed to meet its prima facie burden, those branches of its motion which were for summary judgment on the complaint insofar as asserted against Koznitz, to strike its answer except for the portion thereof that asserted the affirmative defense of noncompliance with
BARROS, J.P., CONNOLLY, CHRISTOPHER and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court