Federal Natl. Mtge. Assn. v Ambrosio

Federal Natl. Mtge. Assn. v Ambrosio 2014 NY Slip Op 08397 Decided on December 3, 2014 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 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
ROBERT J. MILLER
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2013-07522
(Index No. 7262/13)

[*1]Federal National Mortgage Association, respondent,

v

Charles Ambrosio, etc., et al., appellants, et al., defendant.

Fred M. Schwartz, Smithtown, N.Y., for appellants.

Shapito, DiCaro & Barak, LLC, Rochester, N.Y. (Robert S. Markel of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Charles Ambrosio and Roxanne C. Ambrosio appeal from an order of the Supreme Court, Suffolk County (Collins, J.), dated June 17, 2013, which denied their motion to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a) for failure to state a cause of action, lack of capacity, lack of jurisdiction over them, and failure to serve a notice pursuant to the mortgage and to comply with RPAPL 1304 and 1306.

ORDERED that the order is affirmed, with costs.

In March 2013, the plaintiff commenced this action to foreclose a mortgage executed by the defendants Charles Ambrosio and Roxanne C. Ambrosio (hereinafter together the Ambrosio defendants) to secure their indebtedness in the sum of $279,000 on certain premises located in Ridge, New York. The record shows that the mortgage and note were assigned to the plaintiff and the assignment was recorded in the Suffolk County Clerk's Office prior to the commencement of this action. The Ambrosio defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for failure to state a cause of action, lack of capacity, lack of jurisdiction over them, and failure to serve a notice pursuant to the mortgage and to comply with RPAPL 1304 and 1306.

The Supreme Court properly denied the Ambrosio defendants' motion to dismiss the complaint insofar as asserted against them. The Ambrosio defendants failed to come forward with evidence rebutting the presumption of proper service created by the process server's affidavit (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719). Moreover, the Ambrosio defendants failed to come forward with any evidence to rebut the showing that the plaintiff had standing to commence this action by virtue of the assignment of the note and mortgage (see Bank of N.Y. Mellon v Gales, 116 AD3d 723; HSBC Bank USA v Hernandez, 92 AD3d 843).

The Ambrosio defendants' remaining contentions are without merit.

DILLON, J.P., MILLER, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court