Deutsche Bank National Trust Co. v. Abdan

131 A.D.3d 1001, 16 N.Y.S.3d 459

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 2015
• Docket: 2014-03832
• Status: Published

Opinion

In an ac tion to foreclose a mortgage, the defendant Rachel Abdan appeals from a judgment of foreclosure and sale of the Supreme Court, Rockland County (Kelly, J.), dated September 4, 2013, which, upon an order of the same court dated November 5, 2012, granting that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against her, among other things, directed the sale of the subject premises.

Ordered that the judgment is affirmed, with costs.

“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. When, however, the defendant has placed standing in issue, the plaintiff must establish proper standing as part of its prima facie case” (Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689 [2014] [citations omitted]).

Here, in support of that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendant Rachel Abdan, the plaintiff produced the mortgage, the unpaid note, and evidence of default. The plaintiff also established that it had standing to commence this action by submitting the affidavit of a vice-president of the plaintiffs loan servicer, which established that the plaintiff had physical possession of the note prior to the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355 [2015]; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 974 [2014]; Kondaur Capital Corp. v McCary, 115 AD3d 649, 650 [2014]). In opposition, Abdan failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against Abdan.

Rivera, J.R, Dickerson, Cohen and Barros, JJ., concur.