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SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORK

PRESENT: HON. THOMAS A. ADAMS,

Supreme Court Justice

THE BANK OF NEW YORK MELLON f/k/a THE FORECLOSURE PART

BANK OF NEW YORK, as Trustee and on behalf NASSAU COUNTY
of CIT MORTGAGE LOAN TRUST 2007-

Plaintiff INDEX NO. : 26203/09

MOTION DATE: 7/2/10
- against - MOTION SEa. : 1

JUAN MOJICA , et aI.

Defendants.

The following papers were read on this application:

Notice of Motion, Affirmation and Exhibits

Affidavit in Opposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Motion by plaintiff for summary judgment (CPLR 93212) and an order of reference
(RPAPL 91321) is denied and the complaint is dismissed without prejudice.

Among the " affirmative defenses " contained in defendant pro se answer is that of
standing " (See GfJ.,33,211(a)(3)). In support of its standing to maintain the action when
the action was commenced is an " Assignment of Mortgage " executed by MERS as
nominee of Home Funds Direct which includes a provision indicating the assignment is
TOGETHER with the bond or note. . . " . Not only has plaintiff failed to establish MERS'
right as a nominee for purposes of recording to assign the mortgage, more importantly, no
effort has been made to establish the authority of MERS, a non- party to the note, to
transfer its ownership. Without establishing ownership of the note at the time the action
was instituted , the plaintiff lacked a right to maintain the action (See Klug vs. Fuaazy , 145
AD2 537).

Accordingly, plaintiff's motion for summary judgment is denied and judgment is

granted in favor of defendant dismissing the complaint without prejudice.

ENTER:
Dated: JUl 29 tt10

UG 02 '" Hon. Thomas A. Adams

Supreme Court Justice
IT
NASS F'ce
COUNT'