SHORT FORM ORDER

INDEX NO. 30755/2007

SUPREME COURT - STATE OF NEW YORK

I.A.S. TERM. PART 37 - SUFFOLK COUNTY PRESENT: HON. JOSEPH FARNETI Acting Justice Supreme Court CITIMORTGAGE, INC., Plaintiff, -againstGRETCHEN BROWN, FOUR LAURA COURT CO., INC., LAURA COURT CO., INC., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and "John Doe" and/or "Jane Doe" #1-10 inclusive, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
PL TF'S/PET'S ATTORNEY: SWEENEY, GALLO, REICH & BOLZ, LLP BY: ROSEMARIE A. KLlE, ESQ. 95-25 QUEENS BLVD. - SUITE 626 REGO PARK, NEW YORK 11374 718-459-2634 DEFT'S/RESP ATTORNEY: IRWIN POPKIN, ESQ. 1138 WILLIAM FLOYD PARKWAY SHIRLEY, NEW YORK 11967 631-281-0030
ORIG. RETURN DATE: NOVEMBER 29, 2007 FINAL SUBMISSION DATE: JANUARY 10, 2008 MTN. SEQ. #: 001 MOTION: MG Caseci'5f

Upon the following papers numbered 1 to _6_ read on this motion _ TO DISMISS Notice of Motion and supporting papers -1:L; Affirmation in Opposition ....1......; Reply Affirmation _6_; it is,

ORDERED that an Order, pursuant to CPLR upon the ground that plaintiff action, is hereby GRANTED, forth hereinafter.

this motion by defendant GRETCHEN BROWN for 3211 (a)(2) and (3), dismissing the within complaint does not have standing to institute the instant pursuant to CPLR 3211 (a)(3), for the reasons set

CITIMORTGAGE, INC. v. BROWN, ET AL. INDEX NO. 30755/2007

FARNETI, J. PAGE 2

This is an action to foreclose a mortgage allegedly held by plaintiff in connection with the real property located at 4 Laura Court, East Quogue, New York. Defendant GRETCHEN BROWN ("defendant") now moves to dismiss arguing that plaintiff does not have standing to institute the instant action. Defendant alleges that plaintiff was not the holder of the subject note and mortgage at the time the instant action was commenced, and therefore had no standing to commence the action. The within complaint alleges that on or about March 22, 2006, defendant duly executed and delivered a note in the amount of $125,000.00 to CITIBANK, N.A., and a mortgage as security therefor to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as nominee for CITIBANK, N.A., affecting the real property commonly known as 4 Laura Court, a/k/a LL Road, East Quogue, New York. As such, defendant challenges the standing of the plaintiff, CITIMORTGAGE, INC., to commence this action to foreclose the aforementioned mortgage. In opposition, plaintiff claims that it is the assignee of the subject note and mortgage. In support thereof, plaintiff has annexed an assignment of mortgage, notarized on October 4,2007, and effective as of September 21,2007, wherein MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as nominee for CITIBANK, N.A., assigned the mortgage to CITIMORTGAGE, INC. Plaintiff alleges that the aforementioned assignment was recorded in the Suffolk County Clerk's Office on October 17, 2007, in Liber 21620, page 796. The instant action was filed on October 1, 2007. In order to prove standing, plaintiff must demonstrate that it was the owner of the note and mortgage at the time it commenced this foreclosure action (see e.g. Fannie Mae v Youkelsone, 303 AD2d 546 [2003]). Foreclosure of a mortgage may not be brought by one who has no title to it, and absent transfer of the debt, the assignment of the mortgage is a nullity (Kluge v Fugazy, 145 AD2d 537 [1988]). The note secured by the mortgage is a negotiable instrument (see UCC 3-104), which requires indorsement on the instrument itself "or on a paper so firmly affixed thereto as to become a part thereof' (UCC 3-202[2]) in order to effectuate a valid assignment of the entire instrument. Here, plaintiff has submitted an assignment of mortgage which was made effective as of September 21,2007, ten days prior to the commencement of the action. Plaintiff has also submitted the note, a power of attorney, and an undated "allonge to promissory note" purportedly as an indorsement of the note

CITIMORTGAGE, INC. v. BROWN, ET AL.

INDEX NO. 30755/2007

FARNETI, J. PAGE 3

to plaintiff. The indorsement is signed by JIM BERGMANN, as attorney in fact for CITIBANK, N.A. However, the aforementioned power of attorney was made by JOHN E. SHEEHAN, a stranger to this proceeding, appointing GEORGE O. GULDI as his attorney in fact. This unrelated power of attorney was submitted to the Court in between the note and indorsement. As such, it does not appear that this indorsement is part of the note itself, nor does it appear to be so firmly affixed thereto as to become a part thereof (see UCC 3-202[2]). As such, the indorsement fails to conform with UCC 3-202(2) (see Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208 [1989]). As such, on this record, plaintiff failed to prove with competent evidence that it was the holder of the note on the date of commencement to be entitled to the relief demanded in the complaint. Accordingly, defendant's motion to dismiss the complaint is GRANTED upon the ground that plaintiff lacks standing to maintain this action (see Wells Fargo Bank Minn. v Mastropaolo, 42 AD 3d 239 [2007]; TPZ Corp. v Dabbs, 25 AD3d 787 [2006]; Fannie Mae v Yo ukelsone, 303 AD2d 546, supra; Aurora Loan Servs. v Grant, 17 Misc 3d 1102[A] [Sup Ct, Kings County 2007]).

The foregoing constitutes the decision and Order of the Court.

Dated: March 13,2008