Wilmington Sav. Fund Socy., FSB v. Schwartz

Opinion

Wilmington Sav. Fund Socy., FSB v Schwartz

2026 NY Slip Op 05214

September 2, 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.

Wilmington Savings Fund Society, FSB, etc., respondent,

v

Yitzchok Schwartz, etc., et al., appellants, et al., defendants.

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

Decided on September 2, 2026

2025-05173, 2025-05174, (Index No. 512461/20)

Betsy Barros, J.P.

Lillian Wan

James P. McCormack

Phillip Hom, JJ.

McCarthy Fingar LLP, White Plains, NY (Robert H. Rosh of counsel), for appellants.

Friedman Vartolo LLP, New York, NY (Ronald P. Labeck of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Yitzchok Schwartz, Martin Schwartz, Lea Eizikovits, Michael Schwartz, and Bella Teitelbaum appeal from (1) an order of the Supreme Court, Kings County (Carolyn Mazzu Genovesi, J.), dated March 19, 2025, and (2) an order and judgment of foreclosure and sale (one paper) of the same court also dated March 19, 2025. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for a judgment of foreclosure and sale. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court (Larry D. Martin, J.) dated February 5, 2024, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants and for an order of reference, and denying those defendants' cross-motion for summary judgment dismissing the complaint insofar as asserted against them, and upon the order dated March 19, 2025, granted that branch of the plaintiff's motion which was for a judgment of foreclosure and sale and directed the sale of the subject property.

ORDERED that the appeal from the order dated March 19, 2025, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order dated March 19, 2025, must be dismissed because the right of direct appeal from the order terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1]).

In December 2012, Gitel Schwartz executed a consolidated note and consolidation, extension, and modification agreement (hereinafter CEMA) that was secured by a mortgage on [*2]certain real property located in Brooklyn. The consolidated note and CEMA were subsequently assigned to the plaintiff. Gitel Schwartz died in September 2015, and the defendant Yitzchok Schwartz was appointed administrator of her estate. In July 2020, the plaintiff commenced this action to foreclose the mortgage against, among others, Yitzchok Schwartz and the defendants Martin Schwartz, Lea Eizikovits, Michael Schwartz, and Bella Teitelbaum, who are heirs at law and distributees of the estate of Gitel Schwartz (hereinafter collectively the defendants). The defendants interposed an answer asserting various affirmative defenses. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the plaintiff's motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the plaintiff lacked standing and failed to comply with the notice of default provisions of the mortgage. By order dated February 5, 2024, the Supreme Court, among other things, granted those branches of the plaintiff's motion and denied the defendants' cross-motion.

In December 2024, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. The defendants opposed the motion. In an order dated March 19, 2025, the Supreme Court, among other things, granted the plaintiff's motion. In an order and judgment of foreclosure and sale of the same date, the court, inter alia, granted the same relief and directed the sale of the subject property. The defendants appeal.

Contrary to the defendants' contention, since they were not parties to either the note or mortgage, they lacked standing to raise as a defense to this action the plaintiff's alleged failure to serve a notice of default in accordance with the terms of the note and mortgage (see U.S. Bank, N.A. v Orlando, 226 AD3d 946, 948; Bank of N.Y. Mellon Trust Co., NA v Obadia, 176 AD3d 1020, 1024).

The defendants' additional contention that the plaintiff failed to establish its standing to commence the action is likewise without merit. "'A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint'" (Federal Natl. Mtge. Assn. v Hollien, 198 AD3d 615, 617, quoting Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 868). "[T]he note . . . is the dispositive instrument that conveys standing to foreclose" (21st Mtge. Corp. v Rudman, 201 AD3d 618, 620 [internal quotation marks omitted]). Where, as here, the plaintiff's standing has been placed in issue by the defendants' answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment (see Hudson City Sav. Bank v Ellia, 210 AD3d 750, 752).

Here, the plaintiff established, prima facie, its standing by submitting a copy of the note, endorsed in blank, that was annexed to the complaint at the time the action was commenced (see Wells Fargo Bank, N.A. v Dupont, 240 AD3d 550; U.S. Bank, N.A. v Goichman, 230 AD3d 1186, 1186-1187). In opposition, the defendants failed to raise a triable issue of fact. "Where the note is affixed to the complaint, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date" (U.S. Bank, N.A. v Goichman, 230 AD3d at 1187 [internal quotation marks omitted]).

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, denied the defendants' cross-motion for summary judgment dismissing the complaint insofar as asserted against them, and granted that branch of the plaintiff's subsequent motion which was for a judgment of foreclosure and sale.

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court