Citimortgage, Inc. v Goldberg

Citimortgage, Inc. v Goldberg 2015 NY Slip Op 09243 Decided on December 16, 2015 Appellate Division, Second 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 on December 16, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2014-02073
(Index No. 131709/10)

[*1]Citimortgage, Inc., respondent,

v

Adam Goldberg, et al., appellants, et al., defendants.

The Motner Law Office, P.C., New York, NY (Moshe Motner of counsel), for appellants.

Akerman LLP, New York, NY (Jordan M. Smith and Michael Shiba of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Adam Goldberg and Marlaine Goldberg appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated October 31, 2013, as, in effect, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.

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

In a mortgage foreclosure action, the plaintiff 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). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 753, 754).

Here, the plaintiff, which commenced this action in its capacity as holder of the subject note (cf. CWCapital Asset Mgt., LLC v Great Neck Towers, LLC, 99 AD3d 850, 851; Fairbanks Capital Corp. v Nagel, 289 AD2d 99, 100), demonstrated its standing by submitting sufficient evidence of its merger with the previous note holder (see Capital One, N.A. v Brooklyn Flatiron, LLC, 85 AD3d 837, 837). In opposition, the defendants Adam Goldberg and Marlaine Goldberg (hereinafter together the appellants) failed to raise a triable issue of fact (see Grassi & Co., CPAs, P.C. v Janover Rubinroit, LLC, 82 AD3d 700, 703). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellants.

RIVERA, J.P., CHAMBERS, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court