BAC Home Loans Servicing, LP v Alvarado

BAC Home Loans Servicing, LP v Alvarado 2019 NY Slip Op 00585 Decided on January 30, 2019 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 January 30, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
HECTOR D. LASALLE
FRANCESCA E. CONNOLLY, JJ.
2017-06991
(Index No. 1059/10)

[*1]BAC Home Loans Servicing, LP, etc., respondent,

v

Gregorio Alvarado, et al., appellants, et al., defendants.

Lizarraga Law Firm, PLLC, Jackson Heights, NY (William R. Lizárraga of counsel), for appellants.

Woods Oviatt Gilman LLP, Rochester, NY (Victoria E. Munian of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Gregorio Alvarado and Jose DeLeon appeal from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), entered June 8, 2017. The order, insofar as appealed from, in effect, upon reargument, adhered to a prior determination in an order of the same court (Duane A. Hart, J.) entered August 24, 2015, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against those defendants and an order of reference and, in effect, denying that branch of those defendants' cross motion which was to dismiss the complaint insofar as asserted against them for lack of standing.

ORDERED that the appeal from so much of the order entered June 8, 2017, as, in effect, upon reargument, adhered to the determination in the order entered August 24, 2015, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants Gregorio Alvarado and Jose DeLeon and an order of reference is dismissed as academic in light of our determination on the appeal from the order entered August 24, 2015, without costs or disbursements; and it is further,

ORDERED that the order entered June 8, 2017, is affirmed insofar as reviewed, without costs or disbursements.

The facts underlying this appeal are set forth in our decision and order on the related appeal (see BAC Home Loans Servicing, LP v Alvarado, ___ AD3d ___ [Appellate Division Docket No. 2016-4708; decided herewith]).

We agree with the Supreme Court's determination, in effect, upon reargument, adhering to so much of the prior determination as denied that branch of the defendants' cross motion which was to dismiss the complaint insofar as asserted against them on the ground of lack of standing. The defendants failed to establish as a matter of law that the plaintiff lacked standing to commence the action (see Wells Fargo Bank, N.A. v Archibald, 150 AD3d 935, 936; U.S. Bank, N.A. v Noble, 144 AD3d 786, 787).

MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court