|W & H Equities LLC v Odums|
|2014 NY Slip Op 00498 [113 AD3d 840]|
|January 29, 2014|
|Appellate Division, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|W& H Equities LLC, Respondent,|
Marvin Odums, Appellant, et al., Defendants.
Solferino & Solferino, LLP, Mineola, N.Y. (Thomas P. Solferino of counsel), for
Solferino & Solferino, LLP, Mineola, N.Y. (Thomas P. Solferino of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Marvin Odums appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Dabiri, J.), dated August 22, 2011, as, upon an order of the same court dated November 18, 2010, granting the plaintiff's motion for, inter alia, summary judgment on the complaint, and upon an order of the same court dated August 2, 2011, among other things, denying his motion to vacate the order dated November 18, 2010, is in favor of the plaintiff and against him.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the appellant's contention, the original plaintiff, Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint), had standing to commence the action because it was the holder of the mortgage and the underlying note when it commenced the action (see Bank of N.Y. v Silverberg, 86 AD3d 274, 279 ; U.S. Bank N.A. v Pia, 73 AD3d 752, 753 ). Subsequently, Greenpoint assigned the mortgage and note to W & H Equities, LLC (hereinafter W & H), and the Supreme Court properly granted that branch of W & H's motion which was to substitute W & H as the plaintiff in the action (cf. SO/Bluestar, LLC v Canarsie Hotel Corp., 33 AD3d 986, 986-987 ).
The Supreme Court also properly granted that branch of W & H's motion which was for summary judgment on the complaint. A plaintiff seeking summary judgment in a mortgage foreclosure action establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default (see Washington Mut. Bank v Schenk, 112 AD3d 615, 616 ; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856, 856 ). Here, W & H satisfied its burden, and the appellant failed to raise a triable issue of fact in opposition (see Wells Fargo Bank, N.A. v Webster, 61 AD3d at 856).
The appellant failed to demonstrate entitlement to relief under CPLR 5015 (a) (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674 ) and, thus, the Supreme Court properly denied the appellant's motion to vacate the order awarding the plaintiff summary judgment on the complaint.
The appellant's remaining contentions are without merit. Balkin, J.P., Chambers, Austin and Roman, JJ., concur.