Wells Fargo Bank, N.A. v. Ndiaye

2017 NY Slip Op 552, 146 A.D.3d 684, 44 N.Y.S.3d 908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2017
• Docket: 2875
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 9, 2015, which granted the motion of defendant Mbaye Ndiaye to dismiss the complaint as against him with prejudice, unanimously reversed, on the law, without costs and the motion denied.

The dismissals of plaintiff’s prior actions without prejudice premised on lack of standing were not dismissals on the merits for res judicata purposes (see Tico, Inc. v Borrok, 57 AD3d 302 [1st Dept 2008]). Despite the purportedly invalid assignment of the note to plaintiff, plaintiff may nevertheless establish its standing by demonstrating that the note was in its possession or that it was delivered prior to the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]).

Concur — Acosta, J.P., Mazzarelli, Feinman and Webber, JJ.