Bank of N.Y. Mellon v. Johnson

Appellate Division of the Supreme Court of New York

Bank of N.Y. Mellon v. Johnson

2019 NY Slip Op 2999

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 2019

Docket9066 32806/16E

StatusPublished

This text of 2019 NY Slip Op 2999 (Bank of N.Y. Mellon v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bank of N.Y. Mellon v. Johnson, 2019 NY Slip Op 2999 (N.Y. Ct. App. 2019).

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Opinion

Bank of N.Y. Mellon v Johnson (2019 NY Slip Op 02999)

Bank of N.Y. Mellon v Johnson

2019 NY Slip Op 02999

Decided on April 23, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 23, 2019
Renwick, J.P., Gische, Webber, Singh, JJ.

9066 32806/16E

[*1]The Bank of New York Mellon formerly known as The Bank of New York as Indenture Trustee for Newcastle Mortgage Securities Trust 2007-1, Plaintiff-Appellant,

v

Mark Johnson also known as Mark A. Johnson, Defendant-Respondent, Jacqueline A. Johnson also known as Jacqueline A. Johnson, et al., Defendants.

Sandelands Eyet, LLP, New York (Kathleen Cavanaugh of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 11, 2017, which, in this mortgage foreclosure action, denied plaintiff's motion for summary judgment and related relief, unanimously affirmed, without costs.

Issues of fact exist on the issue of standing because there are unexplained discrepancies in the copy of the note attached to the complaint. Although the word "copy" had been stamped on the note, it was crossed out on the first page, but not the other pages and the word "copy" was typewritten on some of the riders. None of these discrepancies were explained or addressed in the affidavit, making it unclear whether plaintiff possessed the original note when this action was commenced (see Aurora Loan Services, LLC v Taylor, 25 NY3d 355, 361 [2015]).

We have considered the remaining arguments by appellant and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 23, 2019

CLERK

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Bank of N.Y. Mellon v Johnson (2019 NY Slip Op 02999)

Bank of N.Y. Mellon v Johnson

2019 NY Slip Op 02999

Decided on April 23, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 23, 2019
Renwick, J.P., Gische, Webber, Singh, JJ.

9066 32806/16E

[*1]The Bank of New York Mellon formerly known as The Bank of New York as Indenture Trustee for Newcastle Mortgage Securities Trust 2007-1, Plaintiff-Appellant,

v

Mark Johnson also known as Mark A. Johnson, Defendant-Respondent, Jacqueline A. Johnson also known as Jacqueline A. Johnson, et al., Defendants.

Sandelands Eyet, LLP, New York (Kathleen Cavanaugh of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 11, 2017, which, in this mortgage foreclosure action, denied plaintiff's motion for summary judgment and related relief, unanimously affirmed, without costs.

Issues of fact exist on the issue of standing because there are unexplained discrepancies in the copy of the note attached to the complaint. Although the word "copy" had been stamped on the note, it was crossed out on the first page, but not the other pages and the word "copy" was typewritten on some of the riders. None of these discrepancies were explained or addressed in the affidavit, making it unclear whether plaintiff possessed the original note when this action was commenced (see Aurora Loan Services, LLC v Taylor, 25 NY3d 355, 361 [2015]).

We have considered the remaining arguments by appellant and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 23, 2019

CLERK

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