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Plaintiff Did Not Demonstrate Standing—No Proof Underlying Debt Was Transferred to the Plaintiff Along with the Mortgage

The Second Department determined the plaintiff in a mortgage foreclosure proceeding did not demonstrate standing because there was no proof the underlying debt was transferred to the plaintiff along with the mortgage:

Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief… .  In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” … . ” 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'” … . “Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity” . Here, the evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically delivered to it prior to the commencement of the action, and the plaintiff similarly failed to submit a written assignment of the note. Bank of NY Mellon v Gales, 2014 NY Slip Op 02402, 2nd Dept 4-9-14

 

Plaintiff Did Not Establish It Was the Lawful Holder of the Note on the Date the Action Was Commenced

The Second Department determined plaintiff did not demonstrate entitlement to summary judgment because it did not establish it had standing as the lawful holder or assignee of the underlying note.  The court explained the applicable law, noting that the assignment of a mortgage without an assignment of the note is a nullity, but the where a note is transferred, the mortgage securing the debt passes as an incident to the note:

Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing to be entitled to relief … . In a mortgage foreclosure action, a plaintiff has standing where it is both the holder of the subject mortgage and of the underlying note at the time the action is commenced … . Where a note is transferred, a mortgage securing the debt passes as an incident to the note … . By contrast, an assignment of a mortgage without assignment of the underlying note or bond is a nullity … . “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” … .

Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not establish that it had standing as the lawful holder or assignee of the subject note on the date it commenced this action… .  MLCFC 2007-9 Mixed Astoria LLC v 36-02 35th Ave Dev LLC, 2014 NY Slip Op 02416, 2nd Dept 4-9-14

 

Court Has Discretion to Deny a Motion to Dismiss for Failure to Prosecute Pursuant to CPLR 3216 Even in the Absence of an Adequate Excuse and a Showing of a Potentially Meritorious Cause of Action

In finding plaintiff did not intend to abandon the action, the Second Department explained the “extremely forgiving” nature of CPLR 3216:

Where a 90-day demand to resume prosecution of an action pursuant to CPLR 3216(b)(3) has been properly served, a plaintiff may avoid dismissal, as a matter of law, by either timely filing a note of issue or moving, before the default date, to vacate the notice or to extend the 90-day period (see CPLR 3216[c]…). Even where a plaintiff has failed to pursue either of these options, however, “the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … .

Moreover, CPLR 3216 is an “extremely forgiving” statute …, which “never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … . Under the plain language of CPLR 3216, a court retains some “residual discretion” to deny a motion to dismiss, even when a plaintiff fails to comply with the 90-day requirement and additionally fails to proffer an adequate excuse for the delay or a potentially meritorious cause of action … . Thus, while the statute prohibits the Supreme Court from dismissing a complaint based on failure to prosecute whenever the plaintiff has shown a justifiable excuse for the delay and the existence of a potentially meritorious cause of action (see CPLR 3216[e]…), “such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, the record demonstrates affirmative steps taken by the plaintiff to continue the prosecution of this action that are inconsistent with an intent to abandon it. Ramon v Zangari, 2014 NY Slip Op 02420, 2nd Dept 4-9-14

 

Objections Based Upon Lack of Due Execution and Lack of Testamentary Capacity Properly Dismissed/Relevant Criteria Explained

The Second Department determined the objections to probate based upon lack of due execution and lack of testamentary capacity were properly dismissed:

In support of that branch of her motion which was for summary judgment dismissing the objection based on lack of due execution, the petitioner made a prima facie showing that the will was duly executed pursuant to EPTL 3-2.1. The deposition testimony of the attorney-drafter, who supervised the execution of the will and acted as an attesting witness, and of the second attesting witness, demonstrated that the statutory requirements for due execution were satisfied … . “Further, where, as here, the drafting attorney supervised the will’s execution, there is a presumption of regularity that the will was properly executed in all respects” … . “The attestation clause and self-proving affidavit accompanying the propounded will also give rise to a presumption of compliance with the statutory requirements” … . In opposition to the petitioner’s prima facie showing of entitlement to judgment as a matter of law dismissing the objection based on lack of due execution, the objectant relied on hearsay evidence, which, by itself, was insufficient to raise a triable issue of fact … .

The petitioner established her prima facie entitlement to judgment as a matter of law dismissing the objection based on lack of testamentary capacity by submitting the self-proving affidavit and the deposition testimony of the attesting witnesses. The petitioner’s submissions demonstrated that the decedent understood the nature and consequences of making the will, the nature and extent of her property, and the natural objects of her bounty … . In opposition, the objectant failed to raise a triable issue of fact as to whether the decedent lacked testamentary capacity … . Matter of Templeton, 2014 NY Slip Op 02445, 2nd Dept 4-9-14

 

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Application for “Special Immigrant Juvenile” Status Need Only Assert Reunification with One Parent Is Not Possible

The Second Department reiterated  that an application for “special immigrant juvenile” status need only be supported by the allegation that reunification with one parent is not possible:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110—457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant juvenile” is a resident alien who is, inter alia, under 21 years of age, unmarried, and “declared dependent on a juvenile court located in the United States or whom such [*2]a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States” (8 USC § 1101[a][27][J][i]). For a juvenile to qualify for SIJS status, it must also be determined that reunification with “1 or both” of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law (id.), and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]). As previously determined by this Court, the “1 or both” language requires only a finding that reunification is not viable with one parent … .  Matter of Gabriel HM…, 2014 NY Slip Op 02587, 2nd Dept 4-16-14

 

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Downward Departure Warranted in SORA Proceeding Where Victim’s Lack of Consent Was Solely By Virtue of Age

The Second Department, over a dissent, determined the fact that the victim’s lack of consent to sexual intercourse was due solely to the inability to consent by virtue of age warranted a downward departure in a SORA proceeding. The court noted that, although the victim became pregnant, there was no evidence the defendant intended to make the victim pregnant, and the defendant pays child support and visits the child often:

…[T]he SORA Guidelines provide that “[a] court may choose to downwardly depart from the risk assessment in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender’s risk to public safety'” … . The evidence in this case proves the existence of the facts supporting this ground for departure.It is true, as our dissenting colleague points out, that there was an 11-year difference in age between the defendant and the victim, and that the victim became pregnant as a result of the defendant’s crime. We share our colleague’s concern about these facts and about the significance of the age differential … . Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sex offender will reoffend and the offender’s threat to public safety (see Correction Law § 168-l[5]). There is no evidence here that the defendant committed his crime with the intention that the victim become pregnant, so the fact that a pregnancy did result is irrelevant to the SORA risk level determination. Moreover, the evidence at the hearing demonstrated that the defendant pays child support to the victim. While, as our dissenting colleague points out, payment of child support is a legal obligation, it was undisputed at the hearing that the defendant not only pays child support, but that he also regularly travels a significant distance to visit the child. People v Marsh, 2014 NY Slip Op 02274, 2nd Dept 4-2-14

 

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Brutality of Offense Warranted an Upward Departure in SORA Proceeding

The Second Department determined the brutality involved in the offense warranted an upward departure:

…[I]n light of the extreme brutality and violence of the defendant’s conduct in his commission of the underlying crimes, which included holding the victim hostage in her home over the course of approximately 13 hours, repeatedly threatening to stab her with a knife and burn her to death with gasoline, raping her twice, locking her in a closet, choking and punching her, and engaging in a standoff with the police, the County Court properly determined that there were aggravating factors not adequately taken into account by the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary … . Upon making such a determination, the County Court providently exercised its discretion in granting the People’s application for an upward departure from a level two to a level three sex offender … . People v Soevyn, 2014 NY Slip Op 02275, 2nd Dept 4-2-14

 

A Forged Deed Is Void Ab Initio and Conveys Nothing to a Bona Fide Purchaser or Encumbrancer

The Second Department explained the effect of a forged deed on all subsequent transactions in which the forged deed is involved:

“A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid” … . “If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing” … . Jiles v Archer, 2014 NY Slip Op 02262, 2nd Dept 4-2-14

 

Lawsuit Properly Dismissed on “Forum Non Conveniens” Grounds

The Second Department determined that a lawsuit stemming from an accident in Canada in which New York’s only connection was the residence of the plaintiff should be dismissed on the ground of forum non conveniens upon the condition the defendant waive any jurisdictional or statute of limitations defenses:

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over the action, the court determines that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327[a]… ). On a motion to dismiss the complaint on the ground of forum non conveniens, the defendant bears the burden of demonstrating “relevant private or public interest factors which militate against accepting the litigation” … . “On such a motion, the Supreme Court is to weigh the parties’ residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system” … . “No one factor is dispositive” … . “The Supreme Court’s determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors … .

Here, the plaintiff is a resident of Canada and the defendant is a resident of Richmond County. The incident complained of occurred in Canada. The location of the defendant’s residence is the sole connection in this case to the State of New York. Under the circumstances of this case and considering all of the relevant factors, including the fact that many of the witnesses, including law enforcement officials, emergency responders, medical personnel, and the owner of the hunting lodge who assigned the plaintiff to act as a hunting guide, are in Canada, the Supreme Court providently exercised its discretion in granting the defendant’s motion to dismiss the complaint pursuant to CPLR 327(a) on the ground of forum non conveniens … . Koop v Guskind, 2014 NY Slip Op 02266, 2nd Dept 4-2-14

 

Motion for Voluntary Discontinuance Should Not Have Been Granted “With Prejudice”

The Second Department determined a motion for the voluntary discontinuance of an action should not have been granted “with prejudice:”

In general, absent a showing of special circumstances, including prejudice to a substantial right of the defendant or other improper consequences, a motion for a voluntary discontinuance should be granted without prejudice (see CPLR 3217[c]…).  Here, there was no showing of any such special circumstances. Contrary to the respondents’ contention, there is no evidence in the record that the action was settled, discontinued, or dismissed on the merits … . Rather, it is undisputed that the settlement reached by the parties was a forbearance agreement. Accordingly, the action should have been discontinued without prejudice. New York Mtge Trust Inc v Dasdemir, 2014 NY Slip Op, 2nd Dept 4-2-14

 

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