Central Mtge. Co. v Sukhdeo

[*1] Central Mtge. Co. v Sukhdeo 2014 NY Slip Op 51718(U) Decided on December 9, 2014 Supreme Court, Kings County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 9, 2014
Supreme Court, Kings County

Central Mortgage Company, Plaintiff,

against

Mohan Sukhdeo, BHOJWATTIE SUKHDEO, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, "John Doe No.1" through "John Doe #12", the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended Block 4021; being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants.



32213/09
Genine D. Edwards, J.

In an action to foreclose a mortgage on real property, plaintiff, inter alia, moves to renew and reargue its prior motion for summary judgment.

A motion for leave to reargue is permissible if the Court misapplied or misapprehended the law or facts. CPLR §2221(d)(2); Deutsche Bank Natl. Trust Co. v. Ramirez, 117 AD3d 674, 985 N.Y.S.2d 616 (2d. Dept. 2014). A motion for leave to renew is based upon new or additional facts "not offered on the prior motion that would change the prior determination or [the motion must] demonstrate that there has been a change in the law that would change the [*2]prior determination." CPLR §2221(e)(2). Such motion "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR §2221(e)(3); Schenectady Steel Co., Inc. v. Meyer Contr. Corp., 73 AD3d 1013, 903 N.Y.S.2d 58 (2d Dept. 2010). Plaintiff fails on both points.

This Court did not misapply or misapprehend the law or facts. Where standing is put into issue by the defendant, the plaintiff has the burden of establishing that it is the holder or assignee of both the subject mortgage and underlying note at the time the action is commenced. See Midland Mtge. Co. v. Imtiaz, 110 N.Y.S.2d 773, 973 N.Y.S.2d 257 (2d Dept. 2013); Deutsche Bank Natl. Trust Co. v. Haller, 100 AD3d 680, 954 N.Y.S.2d 551 (2d Dept. 2012); Bank of NY v. Silverberg, 86 AD3d 274, 926 N.Y.S.2d 532 (2d Dept. 2011). Either a written assignment of the underlying note or physical delivery of the note prior to commencement is sufficient to transfer the obligation. HSBC Bank USA v. Hernandez, 92 AD3d 843, 939 N.Y.S.2d 120 (2d Dept. 2012). Plaintiff missed the mark and cannot now seek to reargue by submitting a new affidavit that includes the very details this Court determined were lacking in its original motion.

Specifically, Teresa Swayze's original affidavit failed to set forth any details concerning the physical delivery of the note, such as the date of physical delivery, or who, what, where, why, and how the note was delivered. Aurora Loan Services, LLC v. Taylor, 114 AD3d 627; 980 N.Y.S.2d 475 (2d Dept. 2014); Deutsche Bank Natl. Trust Co., 100 AD3d at 682; U.S. Bank, N.A. v. Guy, 40 Misc 3d 1242(A); 2013 NY Slip Op. 51532 (U) (Sup. Ct., Kings County 2013); U.S. Bank, N.A. v. Bresler, 39 Misc 3d 1205(A), 971 N.Y.S.2d 75 (Sup. Ct., Kings County 2013). Thus, the plaintiff failed to establish its standing as the holder or assignee of the subject mortgage and underlying note.

Plaintiff's contentions regarding renewal do not fare any better. This Court is not persuaded that law office failure is a reasonable excuse for failing to submit an affidavit that contained more than mere conclusory statements regarding the physical delivery of the note.

As to the additional affidavits pursuant to CPLR §3215(g), plaintiff need not have

submitted an affidavit for defendants Mohan Sukhdeo and Bhojwattie Sukhdeo.

Accordingly, plaintiff's motion for leave to reargue and renew is denied.

ENTER,

_______________________

Genine D. Edwards

A.J.S.C.