What did the court decide?

The court upheld the lower court's denial of a motion to dismiss the foreclosure case and denied the defendant's request to force the plaintiff's lawyers to produce proof they were authorized to start the case.

Who is affected by this decision?

The immediate parties are Deutsche Bank as plaintiff and Kathy McElroy as defendant; the ruling allows the foreclosure action to proceed against McElroy.

Why didn't the court dismiss the case?

Because the plaintiff provided an affidavit from its loan servicer and a limited power of attorney showing the servicer had authority to retain counsel and prosecute the foreclosure, which is adequate under the rule governing attorney authority.

Can this decision be appealed further?

Yes, the decision could be appealed to a higher court, but the Appellate Division affirmed the order; any further appeal would follow normal appellate timelines and standards.

Deutsche Bank Natl. Trust Co. v. McElroy

Docket 2024-06397

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: Apr 22, 2026 · 1 week ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02390
Docket: 2024-06397

Appeal from an order denying a pre-answer motion to dismiss a foreclosure complaint and to compel production of counsel's authority

Summary

The Appellate Division, Second Department affirmed a Supreme Court order denying defendant Kathy McElroy's pre-answer motion to dismiss an amended mortgage foreclosure complaint or, alternatively, to compel plaintiff's counsel to produce proof of authority to commence the action. The plaintiff submitted an affidavit from its servicer's assistant vice president and a limited power of attorney showing the servicer was authorized to act and that the law firm had been retained to begin the foreclosure. The court held those submissions sufficiently established the law firm's authority, so dismissal and compelled production were properly denied.

Issues Decided

Whether the plaintiff produced sufficient evidence under CPLR 322(a) that its counsel was authorized to commence the foreclosure action
Whether the defendant's pre-answer CPLR 3211(a)(1), (3), and (8) grounds warranted dismissal of the amended complaint

Court's Reasoning

CPLR 322(a) allows a defendant to seek production of writings showing the attorney's authority to begin an action, but a writing from the plaintiff or its agent requesting or ratifying counsel's commencement is prima facie evidence of authority. The plaintiff submitted an affidavit from an assistant vice president of its servicer stating the servicer retained counsel to commence the action, together with a limited power of attorney authorizing the servicer to enforce the plaintiff's interests by foreclosure. Those submissions satisfied the prima facie requirement, so dismissal and compelled production were not warranted.

Authorities Cited

CPLR 322(a)
Bank of N.Y. Mellon Trust Co., N.A. v Berokhim231 AD3d 916
Chase Manhattan Bank v Beckerman271 AD2d 392

Parties

Respondent: Deutsche Bank National Trust Company
Appellant: Kathy McElroy
Attorney: Knuckles & Manfro, LLP (Manik J. Saini of counsel)
Attorney: Justin F. Pane, P.C. (Daniel G. Eugene of counsel)
Judge: Angela G. Iannacci, J.P.
Judge: Cheryl E. Chambers, J.
Judge: Lillian Wan, J.
Judge: Janice A. Taylor, J.

Key Dates

Notice of appeal / Appellate decision: 2026-04-22
Order appealed from: 2024-03-04
Action commenced (summons filed): 2023-07-24

What You Should Do Next

1
Consult foreclosure defense counsel
Defendant should consult an attorney experienced in mortgage foreclosure to evaluate substantive defenses, prepare an answer, and determine whether to seek further appellate relief.
2
Prepare answer or other responsive pleadings
If not already done, the defendant should timely serve an answer to the amended complaint or assert any affirmative defenses required to preserve rights in the foreclosure action.
3
Consider motion or appeal options
If there are meritorious issues for appeal or motions (e.g., challenging standing or documents), the defendant should discuss with counsel whether to pursue leave to appeal or additional pretrial motions.

Frequently Asked Questions

What did the court decide?: The court upheld the lower court's denial of a motion to dismiss the foreclosure case and denied the defendant's request to force the plaintiff's lawyers to produce proof they were authorized to start the case.
Who is affected by this decision?: The immediate parties are Deutsche Bank as plaintiff and Kathy McElroy as defendant; the ruling allows the foreclosure action to proceed against McElroy.
Why didn't the court dismiss the case?: Because the plaintiff provided an affidavit from its loan servicer and a limited power of attorney showing the servicer had authority to retain counsel and prosecute the foreclosure, which is adequate under the rule governing attorney authority.
Can this decision be appealed further?: Yes, the decision could be appealed to a higher court, but the Appellate Division affirmed the order; any further appeal would follow normal appellate timelines and standards.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Deutsche Bank Natl. Trust Co. v McElroy - 2026 NY Slip Op 02390

Deutsche Bank Natl. Trust Co. v McElroy

2026 NY Slip Op 02390

April 22, 2026

Appellate Division, Second Department

Deutsche Bank National Trust Company, etc., respondent,

v

Kathy McElroy, appellant, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 22, 2026

2024-06397, (Index No. 618041/23)

Angela G. Iannacci, J.P.

Cheryl E. Chambers

Lillian Wan

Janice A. Taylor, JJ.

Justin F. Pane, P.C., Bohemia, NY (Daniel G. Eugene of counsel), for appellant.

Knuckles & Manfro, LLP, Tarrytown, NY (Manik J. Saini of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Kathy McElroy appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated March 4, 2024. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 322(a) and 3211(a) to dismiss the amended complaint insofar as asserted against her or, in the alternative, pursuant to CPLR 322(a) to compel the plaintiff's counsel to produce admissible evidence of its authority to commence the action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On July 24, 2023, the plaintiff, by attorneys, Knuckles, Komosinski & Manfro, LLP (hereinafter KKM), commenced this action against the defendant Kathy McElroy (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in East Northport.

In October 2023, the defendant moved, pre-answer, inter alia, pursuant to CPLR 322(a) and 3211(a)(1), (3), and (8) to dismiss the complaint insofar as asserted against her or, in the alternative, pursuant to CPLR 322(a) to compel KKM to produce admissible evidence of its authority to commence the action. Thereafter, the plaintiff filed a supplemental summons and amended complaint, and the defendant elected to make her motion as against the amended complaint.

In opposing the motion, the plaintiff submitted an affidavit of Nicholas J. Raab, an assistant vice president of Specialized Loan Servicing, LLC (hereinafter SLS), its servicer and attorney-in-fact, along with a limited power of attorney appointing SLS its attorney-in-fact with respect to certain "enumerated transactions," including "[t]he full enforcement and preservation of the [plaintiff's] interests in [mortgage loans for which the plaintiff was acting as Trustee] . . . by way of . . . foreclosure . . . or the completion of judicial or non-judicial foreclosure." Raab averred in his affidavit, among other things, that SLS retained KKM as counsel "for the purpose of commencing and representing [the plaintiff] throughout this action" and that KKM "had the authority to begin this action on behalf of Plaintiff."

In an order dated March 4, 2024, the Supreme Court, inter alia, denied those branches of the defendant's motion which were pursuant to CPLR 322(a) and 3211(a)(1), (3), and (8) to
dismiss the complaint insofar as asserted against her or, in the alternative, pursuant to CPLR 322(a) to compel KKM to produce admissible evidence of its authority to commence the action. The defendant appeals.

CPLR 322(a) provides that "[w]here the defendant in an action affecting real property has not been served with evidence of the authority of the plaintiff's attorney to begin the action, he [or she] may move at any time before answering for an order directing the production of such evidence. Any writing by the plaintiff or his [or her] agent requesting the attorney to begin the action or ratifying his [or her] conduct of the action on behalf of the plaintiff is prima facie evidence of the attorney's authority."

Here, the plaintiff sufficiently established that KKM was authorized to commence this action by submitting Raab's affidavit indicating that KKM had such authority, accompanied by a power of attorney authorizing the plaintiff's servicing agent to act on the plaintiff's behalf (
see

Bank of N.Y. Mellon Trust Co., N.A. v Berokhim
, 231 AD3d 916, 917;
Chase Manhattan Bank v Beckerman
, 271 AD2d 392, 393).

The parties' remaining contentions either are without merit or need not be addressed in light of our determination.

Accordingly, the Supreme Court properly denied those branches of the defendant's motion which were pursuant to CPLR 322(a) and 3211(a)(1), (3), and (8) to dismiss the amended complaint insofar as asserted against her or, in the alternative, pursuant to CPLR 322(a) to compel KKM to produce admissible evidence of its authority to commence the action.

IANNACCI, J.P., CHAMBERS, WAN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph