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Docket Number

No. 2022-02444

Advocates

Alan J. Wohlberg, Brooklyn, NY (Joseph J. Haspel of counsel), for appellant. Chidi A. Eze (Abrams Fensterman, LLP, Brooklyn, NY [Andrea J. Caruso], of counsel), for respondent.

Acts

— CIVIL PRACTICE LAW AND RULESACCELERATED JUDGMENT — Motion for summary judgment

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Smart Summary

Case Summary: Alexander Reich v. 559 St. Johns Pl, LLC (Decision & Order, Apr. 13, 2022)

Factual and Procedural Background

In February 2015, the plaintiff, Alexander Reich, commenced a mortgage foreclosure action against multiple defendants, including 559 St. Johns Pl, LLC (the defendant), concerning property in Brooklyn. The plaintiff alleged that the defendant failed to make payments under the note and mortgage. The defendant answered and raised affirmative defenses, including lack of standing.

The plaintiff moved for, among other relief, summary judgment on the complaint as to the defendant, dismissal of the defendant's affirmative defenses, and an order of reference. The defendant opposed and cross‑moved for summary judgment dismissing the complaint as to it for lack of standing. By order dated October 10, 2018, Supreme Court, Kings County, denied the plaintiff's motion branches and granted the defendant's cross motion branch dismissing the complaint as to that defendant for lack of standing. The plaintiff appealed. The Appellate Division affirmed the order insofar as appealed from, with costs.

Legal Issues Presented

Whether the plaintiff established a prima facie entitlement to summary judgment in a foreclosure action, including proof of standing to commence the foreclosure.
Whether a purported affidavit executed on behalf of the plaintiff by an attorney‑in‑fact satisfied the CPLR 3212 requirement that a summary judgment motion be accompanied by an affidavit of a person having knowledge of the facts.
Whether the defendant was entitled to summary judgment dismissing the complaint as to it for lack of standing based on evidence of an assignment prior to commencement of the action.

Arguments of the Parties

Appellant's (Plaintiff's) Submissions and Position

The plaintiff submitted the mortgage and the note in support of his summary judgment motion.
The plaintiff also submitted an agreement reflecting a collateral assignment of the mortgage and note to a nonparty, Lenox Pacific, LLC (Lenox), purportedly as part of his proof.
The plaintiff relied on a purported affidavit executed on his behalf by an attorney‑in‑fact in support of the motion.

Respondent's (Defendant's) Submissions and Position

The defendant argued that the plaintiff lacked standing to commence the foreclosure action and cross‑moved for summary judgment dismissing the complaint insofar as asserted against it for lack of standing.
In support of its cross motion, the defendant submitted evidence demonstrating that the plaintiff executed a written assignment of the note and mortgage to Lenox prior to commencement of the action, which it argued established lack of standing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Central Mtge. Co. v. Resheff, 200 A.D.3d 640, 643	Standard for a plaintiff's prima facie entitlement to judgment in a foreclosure: production of the mortgage, the unpaid note, and evidence of default; and that standing must be proved when placed in issue.	The court applied this standard to determine that the plaintiff must establish standing as part of his prima facie showing for summary judgment.
Deutsche Bank Natl. Trust Co. v. Webster, 142 A.D.3d 636, 638	Collateral assignment of the mortgage and note may raise triable issues of fact as to standing.	The court relied on this authority to conclude the plaintiff's submission of a collateral assignment to Lenox created triable issues of fact regarding standing.
U.S. Bank N.A. v. Handler, 140 A.D.3d 948, 949	Collateral assignment can affect whether the plaintiff has standing to commence the action.	The court cited this case alongside Webster to support the proposition that the assignment to Lenox meant standing was placed in issue.
Cymbol v. Cymbol, 122 A.D.2d 771, 772	Statutory powers granted to an attorney‑in‑fact under title 15 of article 5 of the General Obligations Law do not include the power to swear or sign an affidavit in the name of the principal.	The court used this authority to deem the plaintiff's affidavit, signed by an attorney‑in‑fact without a proffered power of attorney, defective for purposes of CPLR 3212.
Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853	Where a plaintiff fails to establish a prima facie entitlement to judgment as a matter of law, denial of the motion is proper irrespective of the sufficiency of opposing papers.	The court invoked this principle to affirm denial of the plaintiff's summary judgment branches because the plaintiff failed to make the required prima facie showing.
CPLR 3212(b)	A motion for summary judgment must be accompanied by an affidavit of a person having knowledge of the facts.	The court relied on this statutory requirement to conclude the plaintiff's affidavit was defective, as it was executed by an attorney‑in‑fact without a power of attorney establishing the agency relationship.

Court's Reasoning and Analysis

The court began by identifying the governing standard for summary judgment in foreclosure actions: a plaintiff must, as a prima facie matter, produce the mortgage, the unpaid note, and evidence of default, and must prove its standing when that issue is placed in dispute (citing Central Mtge. Co. v. Resheff).

Applying that standard, the court found the plaintiff failed to establish a prima facie entitlement to judgment as a matter of law on the issue of standing. Although the plaintiff submitted the mortgage and note, he also submitted an agreement reflecting a collateral assignment of the mortgage and note to Lenox made prior to commencement of the action. The court concluded that this collateral assignment raised triable issues of fact as to the plaintiff's standing (citing Deutsche Bank v. Webster and U.S. Bank v. Handler), preventing the plaintiff from making the necessary prima facie showing.

The court further analyzed the plaintiff's supporting affidavit and determined it was deficient. The affidavit was executed on the plaintiff's behalf by an attorney‑in‑fact, but the plaintiff did not proffer a power of attorney establishing the agency relationship, and the court noted that the statutory powers conferred on an attorney‑in‑fact under title 15 of article 5 of the General Obligations Law do not include the power to swear or sign an affidavit in the principal's name (citing Cymbol v. Cymbol). Because CPLR 3212(b) requires that a summary judgment motion be accompanied by an affidavit of a person with knowledge of the facts, the court held that the plaintiff's affidavit did not satisfy the statutory requirement.

Given the plaintiff's failure to establish a prima facie entitlement to summary judgment on standing, the court concluded that denial of those branches of his motion was proper regardless of the sufficiency of the opposing papers (citing Winegrad v. New York Univ. Med. Ctr.).

Turning to the defendant's cross motion, the court determined the defendant had made a prima facie showing that the plaintiff lacked standing by submitting evidence that the plaintiff executed a written assignment of the note and mortgage to Lenox prior to the commencement of the action. The plaintiff failed to raise a triable issue of fact in opposition, and thus the court granted that branch of the defendant's cross motion dismissing the complaint as to that defendant for lack of standing.

The court noted that, in light of its determination on standing, it did not reach the defendant's remaining contentions.

Holding and Implications

Holding: The Appellate Division affirmed the Supreme Court's order insofar as appealed from, with costs. Specifically, the court affirmed the denial of the plaintiff's branches of his summary judgment motion (for summary judgment on the complaint as to 559 St. Johns Pl, LLC, to dismiss that defendant's affirmative defenses, and for an order of reference) and affirmed the grant of that branch of the defendant's cross motion which sought dismissal of the complaint as to it for lack of standing.

Implications: The direct consequence of the decision is that the complaint, insofar as asserted against 559 St. Johns Pl, LLC, was dismissed for lack of standing. The opinion does not announce any broader rule beyond applying existing case law and statutory requirements to the facts before the court; it does not purport to create new precedent.

Decision authored by DUFFY, J.P.; CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concurred.

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Alexander Reich, appellant, v. 559 St. Johns Pl, LLC, respondent, et al., defendants.

Alan J. Wohlberg, Brooklyn, NY (Joseph J. Haspel of counsel), for appellant.

Chidi A. Eze (Abrams Fensterman, LLP, Brooklyn, NY [Andrea J. Caruso], of counsel), for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated October 10, 2018. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant 559 St. Johns Pl, LLC, to dismiss that defendant's affirmative defenses, and for an order of reference, and granted the branch of that defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it for lack of standing.

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

In February 2015, the plaintiff commenced this action against, among others, the defendant 559 St. Johns Pl, LLC (hereinafter the defendant), to foreclose a mortgage encumbering certain property owned by the defendant in Brooklyn. As is relevant to this appeal, the plaintiff alleged that the defendant failed to make any payments under the note and mortgage. The defendant interposed an answer containing affirmative defenses, including lack of standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to dismiss its affirmative defenses, and for an order of reference. The defendant opposed the motion and cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it for lack of standing. By order dated October 10, 2018, the Supreme Court denied the plaintiff's motion and granted that branch of the defendant's cross motion. The plaintiff appeals.

The Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to dismiss the defendant's affirmative defenses, and for an order of reference. In moving for summary judgment in an action to foreclose a mortgage, a plaintiff generally establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Central Mtge. Co. v Resheff, 200 A.D.3d 640, 643). Where a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing that it is entitled to summary judgment (see id. at 643).

Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of standing. In support of his motion, he submitted, inter alia, the mortgage and the note, as well as an agreement reflecting a collateral assignment of the mortgage and the note to nonparty Lenox Pacific, LLC (hereinafter Lenox), prior to the commencement of the action, which raises triable issues of fact as to his standing (see Deutsche Bank Natl. Trust Co. v Webster, 142 A.D.3d 636, 638; U.S. Bank N.A. v Handler, 140 A.D.3d 948, 949). Moreover, the plaintiff's purported affidavit was executed on his behalf by an attorney-in-fact. Since a motion for summary judgment must be accompanied by an affidavit of a person having knowledge of the facts (see CPLR 3212[b]), the plaintiff's purported affidavit is defective, as he failed to proffer a power of attorney establishing the agency relationship between the attorney-in-fact and himself. In any event, the statutory powers granted to an attorney-in-fact under title 15 of article 5 of the General Obligations Law do not include the power to swear or sign an affidavit in the name of the principal (see Cymbol v Cymbol, 122 A.D.2d 771, 772).

Since the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, those branches of his motion which were for summary judgment on the complaint insofar as asserted against the defendant, to dismiss its affirmative defenses, and for an order of reference were properly denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

The Supreme Court properly granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it for lack of standing. The defendant demonstrated, prima facie, that the plaintiff lacked standing to commence the action by submitting evidence that the plaintiff executed the written assignment of the note and mortgage to Lenox prior to the commencement of the action. In opposition, the plaintiff failed to raise a triable issue of fact.

In light of our determination, we need not reach the defendant's remaining contentions.

DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.

Reich v. 559 St. Johns Pl, LLC