OneWest Bank FSB v. Carey

104 A.D.3d 444, 960 N.Y.S.2d 306

Opinion

Order, Supreme Court, New York County (Carol E. Huff, J.), entered October 7, 2011, which denied defendant Gregory Carey’s motion to dismiss the complaint, unanimously affirmed, without costs.

“In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753 [2d Dept 2009]). Here, the evidence submitted in opposition to defendant’s motion, including the affidavit from plaintiffs employee, established that an assignment of the note had been effectuated by physical delivery of the note prior to the commencement of the instant action (see Bank of N.Y. Mellon Trust Co. NA v Sachar, 95 AD3d 695 [1st Dept 2012]).

We have considered defendant’s remaining contentions, including the challenges to the evidence submitted in opposition to the motion, and find them unavailing. Concur — Andrias, J.E, Friedman, Acosta, Freedman and Clark, JJ.