Freedom Mtge. Corp. v Cornielle

Freedom Mtge. Corp. v Cornielle 2020 NY Slip Op 01908 Decided on March 18, 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 March 18, 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.
2017-12393
(Index No. 63039/14)

[*1]Freedom Mortgage Corporation, respondent,

v

Cristobal Cornielle, et al., appellants.

Steven Zalewski & Associates, P.C., Kew Gardens, NY (Matthew J. Routh of counsel), for appellants.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Suffolk County (Robert F. Quinlan, J.), dated August 21, 2017. The order, insofar as appealed from, granted those branches of the motion of the plaintiff's predecessor in interest which were for summary judgment on the complaint insofar as asserted against the defendants Cristobal Cornielle and Ofelia Cornielle, to strike the answer of the defendants Cristobal Cornielle and Ofelia Cornielle, and for an order of reference.

ORDERED that the appeal by the defendant Millie Gutienz is dismissed, without costs or disbursements, as she is not aggrieved by the portion of the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendants Cristobal Cornielle and Ofelia Cornielle, without costs or disbursements.

The plaintiff's predecessor in interest, Continental Home, Inc. (hereinafter Continental), commenced this foreclosure action against, among others, the defendants Cristobal Cornielle and Ofelia Cornielle (hereinafter together the Cornielles). The Cornielles served an answer in which they asserted, inter alia, the affirmative defense that Continental lacked standing. Continental moved, among other things, for summary judgment on the complaint insofar as asserted against the Cornielles, to strike their answer, and for an order of reference. The Cornielles opposed the motion, arguing, inter alia, that Continental lacked standing to commence the action. In an order dated August 21, 2017, the Supreme Court, among other things, granted Continental's motion and amended the caption to substitute Freedom Mortgage Corporation as the plaintiff. The Cornielles appeal, arguing that Continental failed to establish its standing.

Continental, who was the original lender, established, prima facie, its standing to commence the action by demonstrating that it was the originator of the loan and still had physical possession of the note at the time it commenced the action, as evidenced by its attachment of a copy of the note to its complaint (see JPMorgan Chase Bank, N.A. v Mi Hyang Yang, 170 AD3d 694, 695). In opposition, the Cornielles failed to raised a triable issue of fact (see id. at 695; Citimortgage, Inc. v Espinal, 134 AD3d 876, 880).

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

ENTER:

Aprilanne Agostino

Clerk of the Court