CitiMortgage, Inc. v Chako

CitiMortgage, Inc. v Chako 2020 NY Slip Op 01905 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.
2018-04610
(Index No. 61360/14)

[*1]CitiMortgage, Inc., respondent,

v

David Chako, et al., appellants, et al., defendant.

Kudman Trachten Aloe LLP, New York, NY (Paul H. Aloe and David N. Saponara of counsel), for appellants.

Frenkel Lambert Weiss Weisman & Gordon, LLP (Akerman LLP, New York, NY [Jordan M. Smith], of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants David Chako and Dalia Chako appeal from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), entered January 25, 2018. The judgment of foreclosure and sale, upon two orders of the same court, both dated April 17, 2017, granting the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendants David Chako and Dalia Chako and for an order of reference, confirmed the report of the referee and directed the sale of the subject premises.

ORDERED that the judgment of foreclosure and sale is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendants David Chako and Dalia Chako (hereinafter together the Chakos). After issue was joined, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the Chakos and for an order of reference. In two orders, both dated April 17, 2017, the Supreme Court granted the plaintiff's motion. In a judgment of foreclosure and sale entered January 25, 2018, the court confirmed the report of the referee and directed the sale of the subject premises. The Chakos appeal from the judgment of foreclosure and sale, arguing that the court should have denied the plaintiff's summary judgment motion on the grounds that the plaintiff failed to establish its standing to commence the action and summary judgment was premature.

The plaintiff attached to the complaint a copy of the underlying note, to which was annexed an allonge with a separate endorsement to the plaintiff. Since the attachment of an endorsed note to the complaint in a foreclosure action is sufficient to demonstrate that the plaintiff was the holder of the note at the time the action was commenced, the plaintiff established, prima facie, its standing to commence the action (see CitiMortgage, Inc. v McKenzie, 161 AD3d 1040, 1041). In opposition, the Chakos failed to raise a triable issue of fact (see id. at 1041; see also US Bank N.A. v Sabharwal, 175 AD3d 1454, 1456).

The Chakos' remaining contention is without merit (see Wells Fargo Bank, N.A. v Gonzalez, 174 AD3d 555, 557-558).

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

2018-04610 DECISION & ORDER ON MOTION

CitiMortgage, Inc., respondent, v David Chako, et al.,

appellants, et al., defendant.

(Index No. 61360/14)

Motion by the respondent to dismiss an appeal from a judgment of the Supreme Court, Suffolk County, entered January 25, 2018, on the ground that consideration of the issues presented by the appeal are precluded by the dismissal of two prior related appeals for failure to timely perfect. By decision and order on motion of this Court dated September 14, 2018, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

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

ORDERED that the motion is denied.

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

ENTER:

Aprilanne Agostino

Clerk of the Court