Blog

Proving standing without an assignment?January 1, 2010

Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of minimal importance to the no-fault bar.  For those of us who are called to help friends, loved ones and members of the armed services avoid foreclosures, the “assignment” defense has scored major victories at the Appellate Division, Second Department.

The matter of IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 2009 NY Slip Op 09395 (1st Dept. 2009), takes away some steam from this defense as set forth herein:

“Plaintiff’s original motion for summary judgment was denied because of the court’s concern that the Euroclear statement and other documents suggested that BB Securities, rather than plaintiff, may have been the true holder under the terms of the note. Plaintiff moved to renew, submitting an affidavit by BB’s managing director, clearly averring that it held the note solely as custodian for plaintiff, as well as an assignment agreement between BB and plaintiff, establishing the latter’s exclusive entitlement to sue under the note. Under these circumstances, the court providently exercised its discretion in granting renewal in the interest of justice (see Garner v Latimer, 306 AD2d 209 [2003]). The additional affidavit by an officer familiar with the corporate records, accompanying a true copy of the assignment agreement, was admissible (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]), and established plaintiff’s entitlement to summary judgment.

In view of our finding that summary judgment was correctly granted upon renewal, we dismiss plaintiff’s appeal of the denial of its original motion for summary judgment as academic. However, had we not done so, we would hold that plaintiff met its prima facie burden on the initial motion for summary judgment by submitting evidence of defendant Eldorado Trading’s promise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, and nonpayment (see Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711 [1995]). Plaintiff also submitted evidence demonstrating it had purchased the note, which was held by BB Securities on its behalf in a secure account at Euroclear. Contrary to defendants’ contention, the affidavit of a corporate officer with personal knowledge, together with [*2]authenticated business records, is admissible in support of a motion for summary judgment (see First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]).”

This case also has a rare appearance of the “interest of justice” exception to the general rule that renewal is not allowed unless new facts are presented.  It also has a standard business records discussion.  I will cross-link this on the evidence blog.

Leave a Reply