Asset Securitization Corporation v Orix Capital Markets, LLC

Asset Securitization Corp. v Orix Capital Mkts., LLC 2004 NY Slip Op 07998 [12 AD3d 215] November 9, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Asset Securitization Corporation, Appellant,
v
Orix Capital Markets, LLC, Respondent.

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Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 28, 2004, which, upon the prior grant of defendant's motion pursuant to CPLR 3211, dismissed the complaint, unanimously affirmed, with costs.

The governing Pooling Service Agreement (PSA), relating to a commercial mortgage-backed securities transaction in which plaintiff issued and sold Commercial Mortgage Pass-Through Certificates, does not authorize plaintiff to commence litigation on behalf of the certificateholders. That authority is committed solely to the trustee of the pooled loans, which is not a party to this action (see LaSalle Bank N.A. v Nomura Asset Capital Corp., 180 F Supp 2d 465, 471 [SD NY 2001]). Accordingly, since plaintiff is without standing under the PSA to sue on the certificateholders' behalf and has failed to allege a valid contractual or extracontractual claim on its own behalf, we affirm the dismissal of the complaint. Concur—Sullivan, J.P., Ellerin, Williams, Gonzalez and Catterson, JJ.