   15-3457
   1077 Madison Street, LLC v. Smith

                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).       A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for
   the Second Circuit, held at the Thurgood Marshall United States
   Courthouse, 40 Foley Square, in the City of New York, on the
   5th of December, two thousand sixteen.

   PRESENT:
            DENNIS JACOBS,
            DEBRA ANN LIVINGSTON,
                 Circuit Judges,
            JED S. RAKOFF,*
                 District Judge.
   _____________________________________
   1077 Madison Street, LLC,
            Plaintiff-Counter-Defendant-Appellant,

               -v.-                                    15-3457

   Courtney Smith,
            Defendant-Counter-Claimant-Appellee,

   City of New York Environmental
   Control Board, et al.,

            Defendants.
   _____________________________________

        *   Judge Jed S. Rakoff, United States District Court for
   the Southern District of New York, sitting by designation.
FOR APPELLANT:               Daniel H. Richland, Lindenhurst,
                             NY.

FOR APPELLEE:                Courtney Smith, pro se, Brooklyn,
                             NY.

     Appeal from a judgment of the United States District Court
for the Eastern District of New York (Irizarry, J., Mann, M.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     1077 Madison Street, LLC (“Madison Street”) appeals from
the district court’s grant of summary judgment in favor of
Courtney Smith in its foreclosure action invoking diversity
jurisdiction, based on Madison Street’s failure to establish
standing.    We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the
issues on appeal.

     We review the grant of summary judgment de novo.
Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178-79 (2d Cir.
2013). Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012). We are
required to resolve all ambiguities and draw all inferences in
favor of the non-movant. Nationwide Life Ins. Co. v. Bankers
Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999).

     To establish a prima facie case of foreclosure in New York,
a plaintiff must show (1) a mortgage; (2) an unpaid note; and
(3) proof of default. Fleet Nat’l Bank v. Olasov, 16 A.D.3d
374, 374 (N.Y. App. Div. 2005). Once a plaintiff has made a
prima facie showing, the defendant may raise a defense. See
First Nat’l Bank of Highland v. J. & J. Milano, Inc., 160 A.D.2d
670, 671 (N.Y. App. Div. 1990). “Where standing is raised as
a defense by the defendant, the plaintiff is required to prove
its standing before it may be determined whether the plaintiff
is entitled to relief.” U.S. Bank, N.A. v. Sharif, 89 A.D.3d
723, 724 (N.Y. App. Div. 2011).
     “In a mortgage foreclosure action, a plaintiff has standing
where it is both the holder or assignee of the subject mortgage
and the holder or assignee of the underlying note at the time
the action is commenced.” U.S. Bank, N.A. v. Collymore, 68
A.D.3d 752, 754 (N.Y. App. Div. 2009).        “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.”        Id.   Physical
possession of a note establishes standing “where the plaintiff
possesses a note that, on its face or by allonge, contains an
indorsement in blank or bears a special indorsement payable to
the order of the plaintiff.” Wells Fargo Bank, N.A. v. Ostiguy,
127 A.D.3d 1375, 1376 (N.Y. App. Div. 2015).

     Here, the district court concluded that Madison Street
lacked standing because it neither (1) established an unbroken
chain of assignment of the note, nor (2) produced the physical
note with the requisite indorsement. In its brief, Madison
Street concedes that it did not affirmatively establish
standing.

     Nonetheless, Madison Street contends that the district
court should not have awarded summary judgment to Smith.
First, Madison Street suggests that, under New York law, summary
judgment for lack of standing can only be awarded if the
mortgagee is incapable of demonstrating standing as a matter
of law.     Summary judgment was improper, Madison Street
contends, because it could have provided additional evidence
demonstrating its standing.     Second, Madison Street argues
that it put forth enough evidence of its standing sufficient
to survive summary judgment under the federal standard.

     These arguments lack merit. Summary judgment in federal
court is governed by Federal Rule of Civil Procedure 56 and the
federal precedents interpreting it.           See Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
398 (2010) (noting that if a Federal Rule is on point, the
Federal Rule “governs--New York’s law notwithstanding--unless
it exceeds statutory authorization or Congress’s rulemaking
power”). A federal court must enter summary judgment “against
a party who fails to . . . establish the existence of an element

                               3
essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). It was Madison Street’s burden to
establish standing, Sharif, 89 A.D.3d at 724, and Madison Street
concedes that it failed to do so. Thus, the district court
properly granted summary judgment in favor of Smith.1

     We have considered Madison Street’s remaining arguments
and find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




1
  Madison Street also contends that Smith’s brief in opposition
conceded that Madison Street was the owner of the note at the
time Madison Street initiated the foreclosure action. We do
not read Smith’s brief in this way. Rather, Smith clearly
argues that Madison Street cannot demonstrate a chain of
ownership establishing Madison Street as the lawful assignee
of the note.

                               4
