Deutsche Bank National Trust Co. v. Umeh

2016 NY Slip Op 8305, 145 A.D.3d 497, 41 N.Y.S.3d 882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2016
• Docket: 2428 381221/13
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about September 22, 2015, which denied the motion of defendant Micah Umeh to dismiss the complaint as against him, unanimously affirmed, without costs.

Once defendant placed plaintiffs standing into issue, it was plaintiff’s burden to establish its standing by showing physical possession of the note prior to commencement of the action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]). Here, plaintiff attached the note, which was annexed to the certificate of merit, to its complaint. While the averments in the certificate of merit were insufficient to establish delivery and possession, the fact that the note was in plaintiff’s possession at the time of commencement, as evidenced by its attachment to the complaint, was sufficient (see Nationstar Mtge., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]).

Concur— Mazzarelli, J.R, Friedman, Acosta, Andrias and Moskowitz, JJ.