Citimortgage, Inc. v West | an averment appears to conflict with the import of the written assignments of the note and mortgage executed subsequent to that date that are attached to the moving papers

SUPREME COURT- STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY

Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------X CITIMORTGAGE, INC., Plaintiff -against- BLAIR WEST, ANN M. WEST, a/k/a ANN WEST, JP MORGAN CHASE BANK, N.A AMERICAN EXPRESS TRAVEL RELATED SERVICES, INC., and and "JOHN DOE #1" to "JOHN DOE #10", the last 10 names being fictitious and unknown to plaintiff, intended to be persons, entities or corporations, having or claiming to have an interest in or lien upon the mortgaged premises, Defendants. ---------------------------------------------------------------X excerpt: Upon its review of the moving papers submitted by the plaintiff, the court finds that they failed to establish, prima facie, the plaintiffs standing by due proof in admissible form sufficient to eliminate all questions of fact on that issue. Although the affidavit of merit attached to the moving papers contains an averment that the plaintiff or its duly designated custodian has been in possession of the loan documents in their present condition since October 25, 2005, including the February 8, 2005 consolidated note that contains three indorsements, one of which is in favor of the plaintiff, such an averment appears to conflict with the import of the written assignments of the note and mortgage executed subsequent to that date that are attached to the moving papers. In addition, questions of fact exist regarding whether a proper foundation was established for the admissibility of the records upon which the affiant relied to establish the plaintiffs standing and the date of the defendants' default in payment (see Citibank, N.A. v Cabrera, _ AD3d _ , 2015 WL 4460686 [2d Dept 2015]; US Bank Nat. Ass'n v. Madero, 125 AD3d 757, 5 NYS3d 105 [2d Dept2015); cf, CPLR 4518[a]; State v 158th Street & Riverside Drive Housing Co., Inc., 100 AD3d 1293, 956 NYS2d 196 (3d Dept20121; Landmark Capital Investments, Inc. v. Li-Shan Wang, 94 AD.3d418, 941NYS2d144 [1st Dept 2012]; Charter One Bank, F.S.B. v Leone, 45 AD3d 958, 845 NYS2d 513 [3d Dept 2007)). Due to the existence of these limited issues of fact concerning the plaintiffs ownership and/or possession of the consolidated note of February 8, 2005 on date of the commencement of th.is action and those concerning the date of the defendants' default in payment, the plaintiffs demands for summary judgment on its complaint against the answering defendants are denied. [...]