U.S. Bank N.A. v. Russell

Appellate Division of the Supreme Court of New York

U.S. Bank N.A. v. Russell

2020 NY Slip Op 05169, 129 N.Y.S.3d 331, 186 A.D.3d 1181

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

DecidedSeptember 29, 2020

DocketIndex No. 380990/2013 Appeal No. 11880 Case No. 2019-4571

StatusPublished

Cited by1 cases

This text of 2020 NY Slip Op 05169 (U.S. Bank N.A. v. Russell) 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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U.S. Bank N.A. v. Russell, 2020 NY Slip Op 05169, 129 N.Y.S.3d 331, 186 A.D.3d 1181 (N.Y. Ct. App. 2020).

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Opinion

U.S. Bank N.A. v Russell (2020 NY Slip Op 05169)

U.S. Bank N.A. v Russell

2020 NY Slip Op 05169

Decided on September 29, 2020

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 and Entered: September 29, 2020

Index No. 380990/2013 Appeal No. 11880 Case No. 2019-4571
Before: Acosta, P.J., Webber, Moulton, Shulman, JJ.

[*1]U.S. Bank National Association, etc., Plaintiff-Respondent,

v

Walter Russell, et al., Defendants-Appellants, Criminal Court of the City of New York, et al. Defendants.

Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellants.

Gross Polowy LLC, Williamsville (Douglas C. Weinert of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about April 1, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, without costs.

Plaintiff established its prima facie entitlement to judgment of foreclosure by showing that it had physical possession of the note prior to commencing this action, and by submitting proof of defendant's default (see U.S. Bank N.A. v Askew, 138 AD3d 402 [1st Dept 2016]; Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]). Attachment of the note to the complaint was sufficient to establish possession (see Wilmington Sav. Fund Socy., FSB v Moran, 175 AD3d 1196 [1st Dept 2019]). Further, the affidavit of plaintiff's custodian corroborated that plaintiff had possession of the note before it commenced the action (see PNC Bank, N. A. v Salcedo, 161 AD3d 571 [1st Dept 2018]). Therefore, although plaintiff submitted two versions of the note in support of its motion for summary judgment, that discrepancy did not divest it of standing to seek summary judgment (see id.)

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 29, 2020

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U.S. Bank N.A. v Russell (2020 NY Slip Op 05169)

U.S. Bank N.A. v Russell

2020 NY Slip Op 05169

Decided on September 29, 2020

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 and Entered: September 29, 2020

Index No. 380990/2013 Appeal No. 11880 Case No. 2019-4571
Before: Acosta, P.J., Webber, Moulton, Shulman, JJ.

[*1]U.S. Bank National Association, etc., Plaintiff-Respondent,

v

Walter Russell, et al., Defendants-Appellants, Criminal Court of the City of New York, et al. Defendants.

Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellants.

Gross Polowy LLC, Williamsville (Douglas C. Weinert of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about April 1, 2019, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, without costs.

Plaintiff established its prima facie entitlement to judgment of foreclosure by showing that it had physical possession of the note prior to commencing this action, and by submitting proof of defendant's default (see U.S. Bank N.A. v Askew, 138 AD3d 402 [1st Dept 2016]; Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361 [2015]). Attachment of the note to the complaint was sufficient to establish possession (see Wilmington Sav. Fund Socy., FSB v Moran, 175 AD3d 1196 [1st Dept 2019]). Further, the affidavit of plaintiff's custodian corroborated that plaintiff had possession of the note before it commenced the action (see PNC Bank, N. A. v Salcedo, 161 AD3d 571 [1st Dept 2018]). Therefore, although plaintiff submitted two versions of the note in support of its motion for summary judgment, that discrepancy did not divest it of standing to seek summary judgment (see id.)

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 29, 2020

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2020 NY Slip Op 05169, 129 N.Y.S.3d 331, 186 A.D.3d 1181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-na-v-russell-nyappdiv-2020.

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