15-3457 

1077 Madison Street, LLC v. Smith

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO 

A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS 

GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S 

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH 

THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

5th of December, two thousand sixteen. 

PRESENT: 

DENNIS JACOBS,

DEBRA ANN LIVINGSTON, 

 Circuit Judges,

JED S. RAKOFF,*

District Judge. 

_____________________________________ 

1077 Madison Street, LLC, 

 Plaintiff-Counter-Defendant-Appellant, 

-v.- 15-3457 

Courtney Smith, 

 Defendant-Counter-Claimant-Appellee, 

City of New York Environmental 

Control Board, et al., 

 Defendants. 

_____________________________________ 

 

* Judge Jed S. Rakoff, United States District Court for 

the Southern District of New York, sitting by designation. 
FOR APPELLANT: Daniel H. Richland, Lindenhurst, 

NY. 

 

FOR APPELLEE: Courtney Smith, pro se, Brooklyn, 

NY.

 

Appeal from a judgment of the United States District Court 

for the Eastern District of New York (Irizarry, J., Mann, M.J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

1077 Madison Street, LLC (“Madison Street”) appeals from 

the district court’s grant of summary judgment in favor of 

Courtney Smith in its foreclosure action invoking diversity 

jurisdiction, based on Madison Street’s failure to establish 

standing. We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the 

issues on appeal. 

We review the grant of summary judgment de novo. 

Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178-79 (2d Cir. 

2013). Summary judgment is appropriate only “if the movant 

shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” 

Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012). We are 

required to resolve all ambiguities and draw all inferences in 

favor of the non-movant. Nationwide Life Ins. Co. v. Bankers 

Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999). 

 

To establish a prima facie case of foreclosure in New York, 

a plaintiff must show (1) a mortgage; (2) an unpaid note; and 

(3) proof of default. Fleet Nat’l Bank v. Olasov, 16 A.D.3d 

374, 374 (N.Y. App. Div. 2005). Once a plaintiff has made a 

prima facie showing, the defendant may raise a defense. See

First Nat’l Bank of Highland v. J. & J. Milano, Inc., 160 A.D.2d 

670, 671 (N.Y. App. Div. 1990). “Where standing is raised as 

a defense by the defendant, the plaintiff is required to prove 

its standing before it may be determined whether the plaintiff 

is entitled to relief.” U.S. Bank, N.A. v. Sharif, 89 A.D.3d 

723, 724 (N.Y. App. Div. 2011). 
3 

“In a mortgage foreclosure action, a plaintiff has standing 

where it is both the holder or assignee of the subject mortgage 

and the holder or assignee of the underlying note at the time 

the action is commenced.” U.S. Bank, N.A. v. Collymore, 68 

A.D.3d 752, 754 (N.Y. App. Div. 2009). “Either a written 

assignment of the underlying note or the physical delivery of 

the note prior to the commencement of the foreclosure action 

is sufficient to transfer the obligation.” Id. Physical 

possession of a note establishes standing “where the plaintiff 

possesses a note that, on its face or by allonge, contains an 

indorsement in blank or bears a special indorsement payable to 

the order of the plaintiff.” Wells Fargo Bank, N.A. v. Ostiguy, 

127 A.D.3d 1375, 1376 (N.Y. App. Div. 2015). 

Here, the district court concluded that Madison Street 

lacked standing because it neither (1) established an unbroken 

chain of assignment of the note, nor (2) produced the physical 

note with the requisite indorsement. In its brief, Madison 

Street concedes that it did not affirmatively establish 

standing. 

Nonetheless, Madison Street contends that the district 

court should not have awarded summary judgment to Smith. 

First, Madison Street suggests that, under New York law, summary 

judgment for lack of standing can only be awarded if the 

mortgagee is incapable of demonstrating standing as a matter 

of law. Summary judgment was improper, Madison Street 

contends, because it could have provided additional evidence 

demonstrating its standing. Second, Madison Street argues 

that it put forth enough evidence of its standing sufficient 

to survive summary judgment under the federal standard. 

These arguments lack merit. Summary judgment in federal 

court is governed by Federal Rule of Civil Procedure 56 and the 

federal precedents interpreting it. See Shady Grove 

Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 

398 (2010) (noting that if a Federal Rule is on point, the 

Federal Rule “governs--New York’s law notwithstanding--unless 

it exceeds statutory authorization or Congress’s rulemaking 

power”). A federal court must enter summary judgment “against 

a party who fails to . . . establish the existence of an element 
4 

essential to that party’s case, and on which that party will 

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986). It was Madison Street’s burden to 

establish standing, Sharif, 89 A.D.3d at 724, and Madison Street 

concedes that it failed to do so. Thus, the district court 

properly granted summary judgment in favor of Smith.1

 

We have considered Madison Street’s remaining arguments 

and find them to be without merit. Accordingly, we AFFIRM the 

judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk 

 

1

 Madison Street also contends that Smith’s brief in opposition 

conceded that Madison Street was the owner of the note at the 

time Madison Street initiated the foreclosure action. We do 

not read Smith’s brief in this way. Rather, Smith clearly 

argues that Madison Street cannot demonstrate a chain of 

ownership establishing Madison Street as the lawful assignee 

of the note.