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  • Bank of NY V Silverberg Justice Denise Molia Suffolk NY 24 Sep 2008

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    William A. Roper Jr.
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    This is the decision of the NY State Supreme Court for Suffolk in the case Bank of New York v. Silverberg, Case No. 17464-08, a decision on a motion to dismiss for lack of standing. The decision in this case was overturned on appeal by the NY Supreme Court Appellate Division, 2nd Department, in a decision handed down on June 7, 2011. The appellate decision may be found within the New York Reporter and is shown to be 2011 NYSlipOp 05002.

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    Bank of NY v Silverberg Justice Denise Molia Suffolk NY 24 Sep 2008

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    This is the decision of the NY State Supreme Court for Suffolk in the case Bank of New York v. Silverberg, Case No. 17464-08, a decision on a motion to dismiss for lack of standing. The decision in this case was overturned on appeal by the NY Supreme Court Appellate Division, 2nd Department, in a decision handed down on June 7, 2011. The appellate decision may be found within the New York Reporter and is shown to be 2011 NYSlipOp 05002.

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    261 views2 pages

    Bank of NY V Silverberg Justice Denise Molia Suffolk NY 24 Sep 2008

    Uploaded by

    William A. Roper Jr.
    This is the decision of the NY State Supreme Court for Suffolk in the case Bank of New York v. Silverberg, Case No. 17464-08, a decision on a motion to dismiss for lack of standing. The decision in this case was overturned on appeal by the NY Supreme Court Appellate Division, 2nd Department, in a decision handed down on June 7, 2011. The appellate decision may be found within the New York Reporter and is shown to be 2011 NYSlipOp 05002.

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    of 2

    Index No: 17464-08

    SUPREME COURT - STATE OF NEW Y O N I.A.S. Part 39 - SUFFOLK COUNTY


    P t t 51 \ I

    H o n . DENISE F. MOLIA, Justice

    AS TRUSTEE FOR I'HE REYEFIT OF THE CERTIFICATE HOLDERS, Y W A I r, INC., ALTERNATIVE LOAN TRUST 2OO7 1-lT2. MORTGAGE PASS-THROUGH {'IiR I'IFICATES, SERIES 2007-14T2,
    Plain tiff,
    -

    r m BANK OF NEW YO=,

    CASE DISPOSED: NO MOTION R/D: 7/7/08 SUBMISSION 8/8/08 DATE: MOTION SEQUENCE 001 MD No.: ATTORNEY PLAINTIFF FOR McCabe Weisberg & Conway, PC 145 Huguenot Street, Suite 401 New Rochelle, New York 10801 ATTORNEYS DEFENDANT FOR Stephen C. Silverberg, PLLC 626 RexCorp Plaza Uniondale, New York 1 1556

    against -

    S I'EPHEN SILVERBERG, FREDFUCA


    SIL\ ERBERG, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR COUNTRYWIDE HOME LOANS, INC., and .'JOHN DOE #1" THROUGH"J0HN DOE #lo", IAC'I,USIVE OF THE LAST TEN NAMES BEING FIC7 ITIOUS AND UNKNOWN TO PLAINTIFF, 1 H E PERSONS OR PARTIES INTENDED BEING I'HE PERSONS, TENANTS, OCCUPANTS, OR CORPORATIONS, IF ANY, HAVING OR ('1-AIMING AN INTEREST IN OR LIEN UPON riw MORTGAGED PREMISES DESCRIBED IN IIHE COMPLAINT,
    De fend ants .

    1 poi1 the following papers filed and considered relative to this matter:

    'Cotice of Motion dated June 20, 2008; Affimiation in Support dated May 27,2008; tlirough C annexed thereto; Affirmation in Opposition dated June 26, 2008; Exhibits 4 , ~ n d3 annexed thereto; Amended Reply Affirmation dated June 19, 2008; Exhibit A annexed thcrcto: Reply Affimiation dated July 9, 2008; Exhibits A and B annexed thereto; and upon due deliberation. i t is

    t. \ h i

    hits A

    ORDERED, that the motion by defendants Stephen Silverberg and Fredrica Silverberg,
    piirsiiant to ('PLR 321 1 , for an Order disniissing the Complaint on the grounds that the plaintiff

    aihs stJiiciin2 to sue, is denied.

    I he underlying action is for the foreclosure of a mortgage upon real property situate at 24 Dri\,e, Greenlawn, Suffolk County, New York. On April 27, 2008 the moving ticIciickintselecuted a consolidated Note and Mortgage covering the subject property in the total ~ i i i o u n t $479,000.00. The Note and Mortgage were in favor of Mortgage Electronic of Qcgistratton Systems, Inc. (hereinafter MERS), as named mortgagee, nominee of Countrywide i lome Imm. Inc. The consolidated Note and Mortgage were recorded in the office of the i~iflolk(oiinty Clerk on June 12, 2007.
    JCiii\ 1111:

    [tic defendants do not deny that they have been in default of the subject Note and \lortgagc since November 2007. Instead they seek to dismiss the Complaint by maintaining that C l t. RS did not have the authority to assign the Note and Mortgage, and that the Assignment was .iiidatcd and therefore ineffective.

    MERS does not hold itself out in the Assignment dated April 30, 2008 as the owner and
    older of the mortgage, but as the agent of Countrywide in executing the Assignment. MERS does not claim to serve as an attorney in fact, but as a nominee and the nomination of it serves as :he granting of the authority. The language contained within paragraph 2 of the mortgage

    instrument provides that MERS ...has the right to ...take any action required by lender..., thereby L i l l o111s ~ MERS as nominee to assign the subject mortgage. Lkfendants contentions to the contrary, the subject mortgage was assigned from C oiintrywide to The Bank of New York by Assignment dated April 30, 2008, which was prior to Lhe comniencement of this action on May 6, 2008. Accordingly, The Bank of New York was the c w n u of the Note and Mortgage prior to the commencement of the foreclosure action, and is Lhcrefore the proper party to commence such action. The foregoing constitutes the Order of this Court.
    L)atcd September 24, 2008

    #mwE F*
    HON. DENISE F. MOLIA

    J.S.C.

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