Dyer Trust 2012-1 v. Global World Realty, Inc.

Favata & Wallace, LLP (Claude Castro & Associates, PLLC, New York, N.Y., of counsel), for appellants.

Crowell & Moring LLP, New York, N.Y. (Mark S. Lichtenstein and Gary A. Stahl of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.

Opinion

In an action to foreclose a mortgage, the defendants Global World Realty Inc., Haron Zubli, Daniel Joory, and Oxygen, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered February 18, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them, and denied their cross motion to compel discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendant Global World Realty, Inc., and guaranteed by the defendants Haron Zubli and Daniel Joory (hereinafter collectively the Global defendants), alleging that they defaulted on the terms of the mortgage by failing to make payments on the note. The defendant Oxygen, Inc. (hereinafter Oxygen), is a tenant in the subject

property. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the Global defendants and Oxygen, and those defendants cross-moved to compel the plaintiff to comply with their discovery demands. The Supreme Court, inter alia, granted that branch of the plaintiff's motion, and denied the cross motion.

The Supreme Court correctly concluded that the plaintiff established, prima facie, that it had standing to commence this action. “Where, as here, standing is put into issue by a defendant, ‘the plaintiff must prove its standing in order to be entitled to relief’ ” (Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 628, 980 N.Y.S.2d 475 affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612, 34 N.E.3d 363, quoting U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753, 890 N.Y.S.2d 578 ; see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 242, 837 N.Y.S.2d 247 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 19 N.Y.S.3d 543 ;

Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82 ). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d at 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d at 932, 969 N.Y.S.2d 82 ; Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 912, 961 N.Y.S.2d 200 ).

Here, the plaintiff established, through admissible evidence, its standing as the holder of the note by demonstrating that the note was transferred to it from the original lender by assignment and allonge dated June 22, 2012, which was prior to the commencement of this action (see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d at 628, 980 N.Y.S.2d 475 ).

Furthermore, the plaintiff established its entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the Global defendants' default in payment (see Loancare v. Firshing, 130 A.D.3d 787, 14 N.Y.S.3d 410 ; HSBC Bank USA, N.A. v. Baptiste, 128 A.D.3d 773, 774, 10 N.Y.S.3d 255 ; One W. Bank, FSB v. DiPilato, 124 A.D.3d 735, 998 N.Y.S.2d 668 ). In opposition, the Global defendants and Oxygen failed to raise a triable issue of fact as to any bona fide defense to foreclosure (see Wells Fargo Bank, N.A. v. DeSouza, 126 A.D.3d 965, 3 N.Y.S.3d 619 ; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902 ).

While the “court may deny a motion for summary judgment

if ‘it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated,’ [i]t is incumbent upon the opposing party to provide an evidentiary basis to suggest that discovery might lead to relevant evidence” (Suero–Sosa v. Cardona, 112 A.D.3d 706, 707–708, 977 N.Y.S.2d 61, quoting CPLR 3212[f] ; see Lauriello v. Gallotta, 59 A.D.3d 497, 498–499, 873 N.Y.S.2d 690 ; Brewster v. Five Towns Health Care Realty Corp., 59 A.D.3d 483, 484, 873 N.Y.S.2d 199 ). Here, the Global defendants and Oxygen failed to set forth such a basis, and the mere “ ‘hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion’ ” (Suero–Sosa v. Cardona, 112 A.D.3d at 708, 977 N.Y.S.2d 61, quoting Savage v. Quinn, 91 A.D.3d 748, 750, 937 N.Y.S.2d 265 ). For the same reasons, the Supreme Court properly denied the cross motion to compel discovery.

The remaining contentions of the Global defendants and Oxygen, raised for the first time on appeal, are not properly before this Court (see Community Preserv. Corp. v. Bridgewater Condominiums, LLC, 89 A.D.3d 784, 785, 932 N.Y.S.2d 378 ; Dance Magic, Inc. v. Pike Realty, Inc., 85 A.D.3d 1083, 1089, 926 N.Y.S.2d 588 ).