Deutsche Bank National Trust Company v. McElroy

Summary

The Appellate Division, Second Department, affirmed an order denying Kathy McElroy's motion to dismiss a mortgage foreclosure action or to compel the plaintiff's counsel to produce evidence of authority to commence the action. The court held that the plaintiff sufficiently established counsel's authority under CPLR 322(a) through an affidavit from its servicer's assistant vice president and an accompanying power of attorney.

Holdings

1. The plaintiff sufficiently established that its attorneys were authorized to commence the foreclosure action by submitting the servicer's affidavit stating that the attorneys had such authority together with a power of attorney authorizing the servicer to act on the plaintiff's behalf.
2. The Supreme Court properly denied the branches of the defendant's motion seeking dismissal of the amended complaint under CPLR 3211(a)(1), (3), and (8), or alternatively seeking to compel production of admissible evidence of counsel's authority.

Questions Presented

1. Whether the plaintiff established under CPLR 322(a) that its attorneys were authorized to commence the mortgage-foreclosure action.
2. Whether the defendant was entitled to dismissal under CPLR 3211(a)(1), (3), or (8), or alternatively to an order compelling production of admissible evidence of counsel's authority.

Disposition

affirmed