Wells Fargo Bank, N.A. v Bakth

Wells Fargo Bank, N.A. v Bakth 2020 NY Slip Op 07625 Decided on December 16, 2020 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, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOSEPH J. MALTESE
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.
2017-05910 ON MOTION
(Index No. 701831/15)

[*1]Wells Fargo Bank, N.A., respondent,

v

Achwad Bakth, appellant, et al., defendants.

DECISION & ORDER

Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court, Queens County, entered April 28, 2017, which was determined by decision and order of this Court dated February 26, 2020.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted and, upon reargument, the decision and order of this Court dated February 26, 2020 (Wells Fargo Bank, N.A. v Bakth, 180 AD3d 1106), is recalled and vacated, and the following decision and order is substituted therefor nunc pro tunc to February 26, 2020:

Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellant.

Reed Smith LLP, New York, NY (Zalika T. Pierre of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Achwad Bakth appeals from an order of the Supreme Court, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 28, 2017. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Achwad Bakth and for an order of reference.

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

The plaintiff established, prima facie, that it had standing to commence this action by submitting in support of its motion a copy of the note, endorsed in blank, that was annexed to the complaint at the time the action was commenced (see HSBC Bank USA, N.A. v Desir, ___ AD3d ___, 2020 NY Slip Op 06248 [2d Dept]; PennyMac Corp. v Arora, 184 AD3d 652; JPMorgan Chase Bank, N.A. v Escobar, 177 AD3d 721). In opposition, the defendant Achwad Bakth (hereinafter the defendant) failed to raise a triable issue of fact. Contrary to the defendant's contention, "'[w]here 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 Calabro, 175 AD3d 1451, 1452, quoting U.S. Bank N.A. v Fisher, 169 AD3d 1089, 1091 [internal quotation marks omitted]).

Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.

RIVERA, J.P., MALTESE, BRATHWAITE NELSON and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court