

Bank of N.Y. Mellon v Johnson (2019 NY Slip Op 02999)





Bank of N.Y. Mellon v Johnson


2019 NY Slip Op 02999


Decided on April 23, 2019


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 23, 2019

Renwick, J.P., Gische, Webber, Singh, JJ.


9066 32806/16E

[*1]The Bank of New York Mellon	 formerly known as The Bank of New York as Indenture Trustee for Newcastle Mortgage Securities Trust 2007-1, Plaintiff-Appellant,
vMark Johnson also known as Mark A. Johnson, Defendant-Respondent, Jacqueline A. Johnson also known as Jacqueline A. Johnson, et al., Defendants.


Sandelands Eyet, LLP, New York (Kathleen Cavanaugh of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 11, 2017, which, in this mortgage foreclosure action, denied plaintiff's motion for summary judgment and related relief, unanimously affirmed, without costs.
Issues of fact exist on the issue of standing because there are unexplained discrepancies in the copy of the note attached to the complaint. Although the word "copy" had been stamped on the note, it was crossed out on the first page, but not the other pages and the word "copy" was typewritten on some of the riders. None of these discrepancies were explained or addressed in the affidavit, making it unclear whether plaintiff possessed the original note when this action was commenced (see Aurora Loan Services, LLC v Taylor, 25 NY3d 355, 361 [2015]).
We have considered the remaining arguments by appellant and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 23, 2019
CLERK


