                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   519283
________________________________

BAC HOME LOANS SERVICING, LP,
   Formerly Known as
   COUNTRYWIDE HOME LOANS
   SERVICING LP,
                    Appellant,              MEMORANDUM AND ORDER
      v

BARBARA BIXBY,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   November 18, 2015

Before:   Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.

                             __________


      Kozeny, McCubbin & Katz, LLP, Melville (David Wildermuth of
counsel), for appellant.

      D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel),
Syracuse, for respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Cerio Jr., J.),
entered July 1, 2013 in Madison County, which, among other
things, granted defendant Barbara Bixby's motion for summary
judgment dismissing the complaint against her.

      In February 2005, defendant Barbara Bixby (hereinafter
defendant) executed a note to borrow $164,000 from Opus Home
Equity Services, Inc. that was secured by a mortgage on certain
real property in the Town of Sullivan, Madison County. Plaintiff
                              -2-                519283

commenced this foreclosure action against defendant and others in
June 2009. Defendants answered and asserted, among other things,
that plaintiff was not the holder of the note and mortgage at the
time the action was commenced. While the papers are not included
in the record, it appears that plaintiff moved for summary
judgment dismissing the second defense and counterclaim in
defendant's answer, and that said motion was held in abeyance
pending a motion by defendant to dismiss the complaint.1
Defendant thereafter moved for summary judgment dismissing the
complaint on her first defense and counterclaim, which advanced
the standing argument. Supreme Court denied plaintiff's motion
and granted defendant's motion, and plaintiff now appeals.

      Defendant raised the affirmative defense of standing and,
as such, plaintiff will ultimately be required to prove that it
has standing in order to obtain a judgment of foreclosure (Bank
of N.Y. Mellon v Green, 132 AD3d 706, 707 [2015]; see Bank of
Am., N.A. v Kyle, 129 AD3d 1168, 1169 [2015]). "However, on a
defendant's motion [for summary judgment], the burden is on the
defendant to establish, prima facie, the plaintiff's lack of
standing as a matter of law" (Bank of N.Y. Mellon v Green, 132
AD3d at 707 [citations omitted]; see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853 [1985]; see also Deutsche Bank Trust
Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]).

      A plaintiff has standing to bring a mortgage foreclosure
action if, "at the time the action was commenced, [it] was the
holder or assignee of the mortgage and the holder or assignee of
the underlying note" (Deutsche Bank Natl. Trust Co. v Monica, 131
AD3d 737, 738 [2015]; see Bank of Am., N.A. v Kyle, 129 AD3d at


    1
        We note that plaintiff was required to submit these
motion papers in its record on appeal pursuant to CPLR 5526.
Nevertheless, because plaintiff's motion for partial summary
judgment related to claims with no connection to the issues
raised on appeal, we cannot say that the absence of those papers
"renders meaningful appellate review impossible" so as to require
dismissal of the appeal (Mergl v Mergl, 19 AD3d 1146, 1147
[2005]; see Singh v Getty Petroleum Corp., 275 AD2d 740, 740
[2000]).
                              -3-                  519283

1169). Defendant raised issues as to whether the formal
assignment of the mortgage to plaintiff had been properly
accomplished. She did not, however, provide any proof to call
into question the claim of plaintiff that it was the owner and
holder of the note. A mortgage generally passes as an incident
to the note when the latter is assigned, making "the note . . .
the dispositive instrument that conveys standing to foreclose
under New York law" (Aurora Loan Servs., LLC v Taylor, 25 NY3d
355, 361 [2015]; see Deutsche Bank Natl. Trust Co. v Monica, 131
AD3d at 738; Bank of N.Y. v Silverberg, 86 AD3d 274, 280 [2011]).
Inasmuch as defendant failed to show why that general proposition
would be inapplicable here, she did not satisfy her initial
burden of demonstrating as a matter of law that plaintiff lacked
standing to commence this action, and her motion should have been
denied without regard to the sufficiency of the papers submitted
in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d
at 853; Bank of N.Y. Mellon v Green, 132 AD3d at 707).

      Finally, we decline plaintiff's invitation to search the
anemic record before us and grant it summary judgment (see CPLR
3212 [b]).

     Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur.


      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as granted defendant Barbara
Bixby's motion for summary judgment; said motion denied; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
