WELLS FARGO BANK, N.A., Respondent, v TIMOTHY M. ROONEY, Appellant, et al., Defendants.
No. 2013-06607
Supreme Court, Appellate Division, Second Department, New York
October 14, 2015
132 A.D.3d 980 | 19 N.Y.S.3d 543
Rivera, J.P., Leventhal, Austin and Hinds-Radix, JJ.
In an action to foreclоse a mortgage, the defendant Timothy M. Rooney appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Rosa, J.), dаted April 15, 2013, as granted those branches of the plaintiff‘s motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference, (2) from a second order of the same court, also dated April 15, 2013, which denied his motion, in effect, to vacate an order of the same court (DiBella, J.), dated December 19, 2012, which granted the plaintiff‘s unopposed motion, inter alia, for leave to serve and file an amended complaint, and (3), as limited by his brief, from so much of an order of the same court dated August 28, 2013, as denied that branch of his motion which was for leave to renew his opposition to those branches of the plaintiff‘s motion which were for summary judgment on the
Ordered that the first order dated April 15, 2013, and the order dated August 28, 2013, аre affirmed insofar as appealed from; and it is further,
Ordered that the second order dated April 15, 2013, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
“‘In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default‘” (Bayview Loan Servicing, LLC v 254 Church St., LLC, 129 AD3d 650, 650 [2015], quoting Wells Fargo Bank, N.A. v Webster, 61 AD3d 856, 856 [2009]; see Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 842 [2015]; Aurora Loan Servs., LLC v Enaw, 126 AD3d 830 [2015]). “Where, as here, the plaintiff‘s standing to commence the action is placed in issue by a defendant, the plaintiff must ultimаtely establish its standing to be entitled to relief” (Citimortgage, Inc. v Chow Ming Tung, 126 AD3d at 842; see Loancare v Firshing, 130 AD3d 787 [2015]; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830 [2015]). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627 [2014], affd 25 NY3d 355 [2015]). “Either a written assignment of the underlying note or the physical delivery of thе 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” (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2009]; see Emigrant Mtge. Co., Inc. v Persad, 117 AD3d 676, 677 [2014]; Bank of N.Y. Mellon v Gales, 116 AD3d 723, 724 [2014]).
Here, the Supreme Court properly granted those branches of the plaintiff‘s motion which were for summary judgmеnt on the amended complaint insofar as asserted against the defendant Timothy M. Rooney, to strike Rooney‘s answer, and for an order of refеrence. Contrary to Rooney‘s assertion, the plaintiff established, prima facie, its entitlement to judgment as a matter of law by demonstrating its standing as the holder of the note and mortgage by submitting the affidavit of Alejandro E. Roedel, a vice president of loan documentation for the plaintiff, who established that the рlaintiff had physical possession of the note prior to the commencement of the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206 [2d Dept 2015]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 974 [2014]; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650 [2014]). The plaintiff also produced сopies of the mortgage, the unpaid note, and Roedel‘s affidavit, attesting to Rooney‘s failure to make payments due under the mortgage (sеe Emigrant Bank v Larizza, 129 AD3d 904 [2015]). In opposition, Rooney failed to raise a triable issue of fact.
The Supreme Court providently exercised its discretion in denying that branсh of Rooney‘s motion which was for leave to renew his opposition to those branches of the plaintiff‘s motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference. A motion for leave to renew “shаll be based upon new facts not offered on the prior motion that would change the prior determination” (
Hеre, Rooney failed to establish that the alleged new evidence was not available at the time of the original motion. Even assuming he had a reasonable justification for failing to
Rooney‘s contention that so much of the order of the Supreme Court, Dutchess County, dated April 15, 2013, as granted thosе branches of the plaintiff‘s motion which were for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference, should be vacated pursuant to
The Supreme Court properly denied Rooney‘s motion, in effect, to vacate his default in opposing the plaintiff‘s motion, inter alia, for leave to serve and file an amended complaint. In order to vacate his dеfault, Rooney was required to demonstrate “a reasonable excuse for not opposing the motion and a potentially meritorious opposition to the motion” (Thapt v Lutheran Med. Ctr., 89 AD3d 837, 837 [2011]; see Suede v Suede, 124 AD3d 869, 871 [2015]; Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557, 558 [2014]; Delvalle v Mercedes Benz USA, LLC, 117 AD3d 893, 893 [2014]; Rocco v Family Foot Ctr., 94 AD3d 1077, 1079 [2012]). Even assuming that Rooney set forth a reasonable excuse for his failure to oppose the motion, he did not sеt forth a potentially meritorious opposition to the motion. In this regard, Rooney did not show that the proposed amendment was either palpably insufficient or patently devoid of merit or that it would cause him prejudice or surprise (see
Rooney‘s remaining contentions are without mеrit. Rivera, J.P., Leventhal, Austin and Hinds-Radix, JJ., concur.
Motion by the respondent on appeals from three orders of the Supreme Court, Dutchess County, two dated April 15, 2013, and one dated August 28, 2013, respectively, inter alia, to dismiss the appeal from the order dated April 15, 2013, under Appellate Division docket No. 2013-06607, on the ground thаt the order, in effect, denied reargument. By decision and order on motion of this Court dated June 24, 2014, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the paрers filed in support of the motion, the papers filed in opposition thereto, and the argument of the appeals, it is
Ordered that the motion is denied. Rivera, J.P., Leventhal, Austin, and Hinds-Radix, JJ., concur.