McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of Counsel), for Plaintiff–Appellant.
Pekarek Law Group, P.C., Wellsville (Edward Pekarek of Counsel), for Defendant–Respondent.
Opinion
MEMORANDUM:
Plaintiff commenced this foreclosure action after Level Acres LLC (defendant) defaulted on a consolidated note and mortgage (note and mortgage). In appeal No. 1, plaintiff contends that Supreme Court erred in determining that the assignment of the note and mortgage to plaintiff was invalid, and therefore erred in denying his motion for summary judgment on the complaint. We agree. Although the assignment was executed on May 20, 2010, i.e., before the May 21, 2010 effective date of the note and mortgage, the assignment states that it was to be effective “as of the 28th day of May, 2010,” i.e., after the effective date of the note and mortgage. “[W]here parties to an agreement expressly provide that a written contract be entered into ‘as of’ a[ specific] date [other] than that on which it was executed, the agreement is effective ... ‘as of’ the [specific] date and the parties are bound thereby accordingly” (
Colello v. Colello, 9 A.D.3d 855, 857,
780 N.Y.S.2d 450
[internal quotation marks omitted];
see
Rosner v. Metropolitan Prop. & Liab. Ins. Co., 96 N.Y.2d 475, 480,
729 N.Y.S.2d 658,
754 N.E.2d 760). We therefore conclude that the assignment was valid.
We further conclude that plaintiff met his burden of establishing his entitlement to judgment as a matter of law by establishing that he was the assignee of the note and mortgage when the action was commenced
(
see
First Franklin Fin. Corp. v. Norton, 132 A.D.3d 1423, 1423–1424,
18 N.Y.S.3d 493), and by submitting the note and mortgage, along with evidence of defendant's default (
see
HSBC Bank USA, N.A. v. Prime, LLC, 125 A.D.3d 1307, 1308,
4 N.Y.S.3d 786). Defendant failed to raise a triable issue of fact in opposition (
see generally
Zuckerman v. City of New York, 49 N.Y.2d 557, 562,
427 N.Y.S.2d 595,
404 N.E.2d 718). We note that, because the assignment was effective over three years before the foreclosure action was commenced, the court erred in relying on, e.g.,
Wells Fargo Bank, N.A. v. Marchione, 69 A.D.3d 204,
887 N.Y.S.2d 615.
Finally, in light of our determination in appeal No. 1, we dismiss the appeal from the order in appeal No. 2 as moot.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the motion is granted.
SMITH, J.P., PERADOTTO, CARNI, LINDLEY, and WHALEN, JJ., concur.