U.S. Bank Trust, N.A. v. Dweck

Opinion

U.S. Bank Trust, N.A. v Dweck

2026 NY Slip Op 05342

September 16, 2026

Appellate Division, Second Department

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

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

U.S. Bank Trust, National Association, etc., appellant,

v

Edmond Dweck, etc., et al., respondents, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-07102, (Index No. 532455/22)

Angela G. Iannacci, J.P.

Deborah A. Dowling

Lourdes M. Ventura

Donna-Marie E. Golia, JJ.

Friedman Vartolo LLP, Garden City, NY (Stephen J. Vargas of counsel), for appellant.

Zeltser Law Group, PLLC, Brooklyn, NY (Naomi Zeltser of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 12, 2024. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Edmond Dweck and Susan Dweck, to strike those defendants' first, third, and twenty-first affirmative defenses, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In November 2022, the plaintiff commenced this action against the defendants Edmond Dweck and Susan Dweck (hereinafter together the defendants), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn. The defendants interposed an answer asserting various affirmative defenses, including lack of standing. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their first, third, and twenty-first affirmative defenses, and for an order of reference. In an order dated March 12, 2024, the Supreme Court, among other things, denied those branches of the plaintiff's motion. The plaintiff appeals.

Generally, a plaintiff moving for summary judgment in a mortgage foreclosure action establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default (see Lakeview Loan Servicing, LLC v Swanson, 231 AD3d 801, 802; HSBC Bank USA, NA v Thoppil, 227 AD3d 1056, 1057). Where, as here, the plaintiff's standing has been placed into issue by the defendants, the plaintiff must also prove its standing in order to be entitled to relief (see Lakeview Loan Servicing, LLC v Swanson, 231 AD3d at 802-803; US Bank N.A. v Nelson, 169 AD3d 110, 114). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362). "An endorsement made on a negotiable instrument, whether a specific endorsement or an endorsement in blank, must be on the instrument or on a paper so 'firmly affixed thereto as to become a part thereof'" (Deutsche Bank Natl. Trust Co. v Motzen, 207 AD3d [*2]434, 435, quoting UCC 3-202[2]).

Here, the plaintiff failed to establish, prima facie, its standing to commence this action. Although the plaintiff annexed the note to the summons and complaint, the plaintiff did not demonstrate that the purported allonge containing an endorsement in blank, which was on a piece of paper completely separate from the note, was "so firmly affixed thereto as to become a part thereof" as required by UCC 3-202(2) (see U.S. Bank N.A. v Muroff, 234 AD3d 1010, 1012-1013; US Bank N.A. v Okoye-Oyibo, 213 AD3d 718, 720). Further, an affidavit of the president of the plaintiff's assignee, submitted by the plaintiff in support of its motion, was insufficient to establish the plaintiff's standing as the holder of the note at the time the action was commenced (see U.S. Bank N.A. v Okoye-Oyibo, 213 AD3d at 720; Wells Fargo Bank, N.A. v Malek, 199 AD3d 1040, 1042).

Accordingly, since the plaintiff failed to establish its standing, the Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their first, third, and twenty-first affirmative defenses, and for an order of reference, regardless of the sufficiency of the defendants' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The plaintiff's remaining contentions either are without merit, are not properly before this Court, or need not be reached in light of our determination.

IANNACCI, J.P., DOWLING, VENTURA and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court