                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   520642
________________________________

CITIBANK, NA, as Trustee
   for CD 2003-6,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

KENNETH ABRAMS, Also Known as
   KENNETH T. ABRAMS, et al.,
                    Appellants,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   September 14, 2016

Before:   McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                             __________


     Ronald J. Kim, Saratoga Springs, for appellants.

      Ballard Spahr LLP, New York City (Justin A. Angelo of
counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered August 14, 2014 in Saratoga County, which, among other
things, granted plaintiff's motion for summary judgment.

      In May 2003, defendants Kenneth Abrams and Madeline Abrams
(hereinafter collectively referred to as defendants) obtained a
mortgage loan from Fleet National Bank for their purchase of real
property in the City of Saratoga Springs, Saratoga County.
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Defendants executed a note dated May 22, 2003 in the amount of
$509,000 and agreed to repay the loan to the order of Fleet or to
the note holder. To secure payment of the note, defendants
executed a mortgage on the real property, also dated May 22,
2003, in favor of Mortgage Electronic Registration Systems, Inc.
(hereinafter MERS), as nominee for Fleet and its successors and
assigns. The mortgage was recorded on June 5, 2003 in the
Saratoga County Clerk's office.

      Defendants failed to make the payment due in June 2010 and
any payments thereafter. Pursuant to an assignment of mortgage
dated May 13, 2011, which was recorded in the Saratoga County
Clerk's office on May 26, 2011, MERS assigned the mortgage to
plaintiff as trustee. By an undated allonge to the note by
special indorsement, it was transferred to plaintiff by Cendant
Mortgage Corporation as authorized agent for Fleet. Pursuant to
a limited power of attorney, plaintiff appointed PHH Mortgage
Corporation as its attorney-in-fact and loan servicing agent,
including with respect to defendants' mortgage loan. Plaintiff
commenced this action to foreclose the mortgage on May 11, 2012.
Following joinder of issue, plaintiff moved for summary judgment.
Defendants answered and contested plaintiff's motion on the
ground that plaintiff lacked standing and cross-moved for, among
other things, an order dismissing the complaint or, in the
alternative, striking the complaint due to plaintiff's failure to
answer their discovery demands. Supreme Court denied defendants'
cross motion and granted plaintiff's motion, finding that
plaintiff established its entitlement to summary judgment as a
matter of law. Defendants now appeal.

      We affirm. First addressing defendants' cross motion to
strike the complaint due to plaintiff's failure to respond to
defendants' discovery requests, we note that even though Supreme
Court granted defendants' request for an extension of time to
respond to plaintiff's motion, at no point did defendants request
an order of disclosure. As is relevant here, "[w]hile it is true
that a motion for summary judgment may be opposed with the claim
                              -3-                520642

that facts essential to justify opposition may exist but that
such material facts are within the exclusive knowledge and
possession of the moving party, a party's mere hope or
speculation that evidence sufficient to defeat the motion may be
uncovered during the discovery process is insufficient to
postpone determination on the motion" (Gersten-Hillman Agency,
Inc. v Heyman, 68 AD3d 1284, 1288 [2009] [internal quotation
marks, brackets and citations omitted]; see CPLR 3212 [f];
Clochessy v Gagnon, 58 AD3d 1008, 1010 [2009]). CPLR 3126
authorizes a court to fashion an appropriate remedy when a party
refuses to obey an order of disclosure or willfully fails to
disclose information that the court finds ought to have been
disclosed (see CPLR 3126; CDR Créances S.A.S. v Cohen, 23 NY3d
307, 317-318 [2014]; Appler v Riverview Obstetrics & Gynecology,
P.C., 9 AD3d 577, 578 [2004]). Here, defendants failed to obtain
an order of disclosure and failed to demonstrate that plaintiff
willfully failed to obey an order to disclose information that
the court determined ought to have been disclosed. As such,
defendants were not entitled to have the complaint stricken on
this basis (see CPLR 3126; CDR Créances S.A.S. v Cohen, 23 NY3d
at 317; Appler v Riverview Obstetrics & Gynecology, P.C., 9 AD3d
at 578).

      A plaintiff establishes its entitlement to summary judgment
in a mortgage foreclosure action by submitting the mortgage and
unpaid note, along with evidence of default in payments (see PHH
Mtge. Corp. v Davis, 111 AD3d 1110, 1111 [2013], lv dismissed 23
NY3d 940 [2014]; Charter One Bank, FSB v Leone, 45 AD3d 958, 958
[2007]; HSBC Bank USA v Merrill, 37 AD3d 899, 900 [2007], lv
dismissed 8 NY3d 967 [2007]). "Where, as here, the issue of
standing is raised as an affirmative defense, the plaintiff must
also prove its standing in order to be entitled to relief" (Wells
Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376 [2015] [citations
omitted]; see Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d
737, 738 [2015]). It is well settled that "plaintiff has
standing in a mortgage foreclosure action where it is both the
holder or assignee of the subject mortgage and the holder or
                              -4-                520642

assignee of the underlying note at the time the action is
commenced" (Bank of Am., N.A. v Kyle, 129 AD3d 1168, 1169 [2015];
see Chase Home Fin., LLC v Miciotta, 101 AD3d 1307, 1307 [2012]).
"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"
(Bank of Am., N.A. v Kyle, 129 AD3d at 1169 [internal quotation
marks and citations omitted]; see Onewest Bank, F.S.B. v Mazzone,
130 AD3d 1399, 1400 [2015]). "Holder status is established 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, NA v
Ostiguy, 127 AD3d at 1376). Once a plaintiff demonstrates its
status as a holder, the burden then shifts to the defendant to
demonstrate, by competent and admissible proof, that a defense
exists so to raise a question of fact as to his or her default
(see PHH Mtge. Corp. v Davis, 111 AD3d at 1111; Charter One Bank,
FSB v Leone, 45 AD3d at 958; HSBC Bank USA v Merrill, 37 AD3d at
900).

      Plaintiff's motion for summary judgment included, among
other things, the affidavit of Felicia Polk, the assistant vice-
president of PHH. Polk averred that the note and mortgage were
transferred to plaintiff as trustee, and that the transfer "was
memorialized by the delivery and endorsement of the underlying
[n]ote and by an [a]ssignment of [m]ortgage." We note that,
here, plaintiff possessed the note that, by allonge, contained an
indorsement specifically payable to it (see Deutsche Bank Natl.
Trust Co. v Monica, 131 AD3d at 739; Wells Fargo Bank, NA v
Ostiguy, 127 AD3d at 1376). Thus, Polk's affidavit, coupled with
the complaint's definitive statement in Schedule D – wherein it
specifies that the note was indorsed by the original lender or
its agent and was delivered to plaintiff prior to the
commencement of this action – adequately demonstrates that
plaintiff had physical possession as holder of the note at the
relevant time (compare Bank of Am., N.A. v Kyle, 129 AD3d at
1169; Wells Fargo Bank, NA v Ostiguy, 127 AD3d at 1376-1377).
                              -5-                520642

Polk's affidavit also established that the default amount due on
the note and mortgage as of January 13, 2014 was $648,193.18.
Plaintiff's documentary proof and proof by affidavit established
its standing, as a matter of law, in that it was the holder of
both the subject mortgage and the underlying note at the time
that the action was commenced (see Deutsche Bank Natl. Trust Co.
v Monica, 131 AD3d at 739). Thus, as plaintiff's motion was
supported by the required documentation, the burden shifted to
defendants to establish the existence of a viable defense to
their alleged default (see PHH Mtge. Corp. v Davis, 111 AD3d at
1111; HSBC Bank USA v Merrill, 37 AD3d at 900; Charter One Bank,
FSB v Leone, 45 AD3d at 958-959).

      Defendants argue that Polk's affidavit should be
disregarded for a myriad of reasons, including their contention
that Polk lacked any personal knowledge of the note, the mortgage
or other records referred to in her affidavit, and, therefore,
her affidavit should not have been considered by Supreme Court.
We disagree. In her affidavit, Polk averred that she had
"personal knowledge of the facts" but conceded that "the source
of [her] knowledge is [her] review of the books and records of
said agent of [p]laintiff and [her] own knowledge of the account
records regarding the delinquent account of [d]efendant[s]."
That Polk had personal knowledge of the account records is not
pertinent to the standing issue. As to possession, Polk conceded
that her knowledge was based on a records review – which does not
constitute personal knowledge of the operative facts. That said,
it was not necessary for Polk to have personal knowledge as to
the creation of the original loan documents (see Deutsche Bank
Natl. Trust Co. v Monica, 131 AD3d at 739; HSBC Bank USA, N.A. v
Sage, 112 AD3d 1126, 1127 [2013], lvs dismissed 22 NY3d 1172
[2014], 23 NY3d 1015 [2014]). Moreover, as a representative of
the servicing agent, Polk was entitled to rely on the loan
records in addressing the issue of possession, as CPLR 4518 (a)
does not require a person to have personal knowledge, and
defendants have failed to offer any proof that Polk lacked the
requisite knowledge necessary to proffer her affidavit as proof
                              -6-                520642

of the facts stated therein. Given Polk's agency status as
assistant vice-president of PHH, the records qualify as business
records (see CPLR 4518 [a]; Deutsche Bank Natl. Trust Co. v
Monica, 131 AD3d at 739).

      Defendants also argue that Polk's affidavit should be
disregarded because it is a fill-in-the-blank document, which
allegedly creates a genuine issue of material fact whether the
document was executed by Polk after reading the affidavit and
verified its contents. The record is absent of any scintilla of
proof to support defendants' allegations. The argument that
there is a genuine issue of material fact whether Polk read the
affidavit prior to its execution and verified its contents as
truthful is merely surmise and conjecture, as plaintiff contends.
"Motions for summary judgment may not be defeated merely by
surmise, conjecture or suspicion" (Shaw v Time-Life Records, 38
NY2d 201, 207 [1975] [citations omitted]; see Naylor v Ceag Elec.
Corp., 158 AD2d 760, 762 [1990]). Self-serving and conclusory
allegations do not raise issues of fact and do not require
plaintiff to respond to such allegations (see Charter one Bank,
FSB v Leone, 45 AD3d at 959). Here, Polk's sworn, notarized
affidavit expressly contains the phrase "being duly sworn." Her
affidavit stated that she had been duly sworn before a notary
public and the affidavit was notarized. As such, defendants'
argument is without merit (see CPLR 2309 [b]; Collins v AA Truck
Renting Corp., 209 AD2d 363, 363 [1994]). We have examined
defendants' remaining arguments in opposition to plaintiff's
motion for summary judgment and find them to be without merit.

     McCarthy, J.P., Lynch, Rose and Devine, JJ., concur.
                        -7-                  520642

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
