PRESENT:

SUPREME COURT - STATE OF NEW YORKLA.S. TERM. PART 37 - SUFFOLK COUNTY

Upon the following papers numbered 1 to _6_ read on this motion _TO DISMISS

Notice of Motion and supporting papers 1-3 ; Affirmation in Opposition ~; Reply Affirmation_6_; it is,

INDEX NO. 33781/2007

ORIG. RETURN DATE: DECEMBER 31,2007FINAL SUBMISSION DATE: JANUARY 10, 2008MTN. SEQ. #: 001MOTION: MG

PLTF'S/PET'S ATTORNEY:DRUCKMAN & SINEL, LLP242 DREXEL AVENUE - SUITE 2WESTBURY, NEW YORK 11590516-876-0800

DEFENDANT DONALD MACPHERSON'SATTORNEY:IRWIN POPKIN, ESQ,1138 WILLIAM FLOYD PARKWAYSHIRLEY, NEW YORK 11967631-281-0030

SHORT FORM ORDER

Defendants.

-against-

Plaintiff,

HON. JOSEPH FARNETIActing Justice Supreme Court

AURORA LOAN SERVICES,

DONALD MACPHERSON, BELESKAHOMESTEAD INC., MORTGAGEELECTRONIC REGISTRATION SYSTEMS,INC., AS NOMINEE FOR FIRST MAGNUSFINANCIAL CORPORATION, 1104 NORTHSEA CO., INC., NEW YORK STATEDEPARTMENT OF TAXATION ANDFINANCE, "JOHN DOE 1 to JOHN DOE 25",said names being fictitious, the persons orparties intended being the persons, parties,corporations or entities, if any, having orclaiming an interest in or lien upon themortgaged premises described in thecomplaint,

ORDERED that this motion by defendant DONALD MACPHERSONfor an Order, pursuant to CPLR 3211, dismissing the within complaint upon thegrounds that: (1) plaintiff does not have standing to institute the instant action;and (2) plaintiff failed to allege that the condition precedent to the commencementof this action has been satisfied, is hereby GRANTED, pursuant to CPLR3211 (a)(3), for the reasons set forth hereinafter.

This is an action to foreclose a mortgage held by plaintiff inconnection with the real property located at 1104 North Sea Road, Southampton,New York. Defendant DONALD MACPHERSON ("defendant") now moves todismiss arguing that plaintiff does not have standing to institute the instant action,and that plaintiff failed to allege that a condition precedent to the commencementof this action has been satisfied.

In order to prove standing, plaintiff must demonstrate that it was theowner of the note and mortgage at the time it commenced this foreclosure action(see e.g. Fannie Mae v Youkelsone, 303 AD2d 546 [2003]). On this record,plaintiff failed to prove its standing with competent evidence to be entitled to therelief demanded in the complaint (see Wells Fargo Bank Minn. v Mastropaolo, 42AD3d 239 [2007]; TPZ Corp. v Dabbs, 25 AD3d 787 [2006]; Fannie Mae v

Defendant alleges that plaintiff was not the holder of the subjectmortgage at the time the instant action was commenced, and therefore had nostanding to commence the action. The within complaint alleges that on or aboutJuly 25,2006, defendant duly executed and delivered to FIRST MAGNUSFINANCIAL CORPORATION a note in the amount of $1,495,000.00, and amortgage as security therefor affecting the real property commonly known as1104 North Sea Road, Southampton, New York. As such, defendant challengesthe standing of the plaintiff, AURORA LOAN SERVICES, to commence thisaction to foreclose the aforementioned mortgage.

FARNETI, J.PAGE 2

In opposition, plaintiff claims that it was the assignee of the subjectmortgage prior to commencement of this action. In support thereof, plaintiff hasannexed an assignment of mortgage, dated October 19, 2007, whereinMORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. as nominee forFIRST MAGNUS FINANCIAL CORPORATION, assigned a mortgage toAURORA LOAN SERVICES LLC. The assignment indicates that the mortgagewas executed by defendant on or about June 26,2006. However, thisassignment concerns a note having an original principal sum of $980,000.00, anda mortgage affecting property with an address of 9 Pheasant Run, Quogue, NewYork. Moreover, the Court notes that the mortgage at issue in the instant actionis alleged to have been recorded in the Suffolk County Clerk's Office on August 4,2006, in Liber/Ree121354 at page 783, whereas the mortgage referenced in theassignment submitted by plaintiff is alleged to have been recorded in the SuffolkCounty Clerk's Office on July 26,2006, in Liber/Reel 21347 at page 650.

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The foregoing constitutes the decision and Order of the Court.

Youkelsone, 303 AD2d 546, supra; Aurora Loan SelVs. v Grant, 17 Misc 3d1102[A] [Sup Ct, Kings County 2007]). Accordingly, defendant's motion todismiss the complaint is GRANTED upon the ground that plaintiff lacks standingto maintain this action.

FARNETI, J.PAGE 3

Dated: March 12,2008

AURORA LOAN SERVICES v. MACPHERSON, ET AL.INDEX NO. 33781/2007