Justice Debra Silber
US Bank moved to reargue denial of its motion for summary judgment, and the granting of Bresler’s dismissal motion for lack of standing in this foreclosure action. In the original motion, the court found the bank failed to make out a prima facie case for summary judgment, and Bresler established a case on the grounds the bank failed to show it had standing to bring the action on the date it was commenced. The court found the bank failed to prove an assignment or physical delivery of the note before the commencement of the action, noting no allonge of the note was included in its original motion papers, thus the court did not misapprehend the facts. It stated a note secured by a mortgage was a negotiable instrument, and a transfer required an indorsement of the instrument itself, or a paper so firmly affixed to it as to become part of it, as required by UCC §3-202(2), to effectuate a valid assignment of the instrument. As there was no evidence of delivery of the note before the action’s commencement, the "so-called indorsement" failed to support the bank’s claim the note and mortgage were transferred to it by a properly indorsed note before start of the action. Thus, the court granted reargument, but upon same adhered to its original decision.
