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

r m BANK OF NEW YO=, AS TRUSTEE FOR

Y W A I r, INC., ALTERNATIVE LOAN TRUST I'HE REYEFIT OF THE CERTIFICATE HOLDERS,

2OO7 1-lT2. MORTGAGE PASS-THROUGH {'IiR I'IFICATES, SERIES 2007-14T2,

CASE DISPOSED: NO MOTION R/D: 7/7/08 SUBMISSION DATE: 8/8/08 MOTION SEQUENCE No.: 001 MD

Plain tiff,

- 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

IIHE COMPLAINT, riw MORTGAGED PREMISES DESCRIBED IN

De fend ants .

ATTORNEY FOR PLAINTIFF McCabe Weisberg & Conway, PC 145 Huguenot Street, Suite 401 New Rochelle, New York 10801

ATTORNEYS FOR DEFENDANT Stephen C. Silverberg, PLLC 626 RexCorp Plaza Uniondale, New York 1 1556

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; t. \ h i hits A tlirough C annexed thereto; Affirmation in Opposition dated June 26, 2008; Exhibits 4 , ~ n d €3 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

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

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aihs stJiiciin2 to sue, is denied.

I he underlying action is for the foreclosure of a mortgage upon real property situate at 24 JCii i \ 1111: Dri\,e, Greenlawn, Suffolk County, New York. On April 27, 2008 the moving ticI‘ciickints elecuted a consolidated Note and Mortgage covering the subject property in the total ~ i i i o u n t of $479,000.00. The Note and Mortgage were in favor of Mortgage Electronic 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~if’l’olk (’oiinty Clerk on June 12, 2007.

[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 o ~ 111s 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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