| Wells Fargo Bank, N.A. v Ndiaye |
| 2017 NY Slip Op 00552 [146 AD3d 684] |
| January 26, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Wells Fargo Bank, N.A., as Trustee for Securitized
Asset Backed Receivables, LLC Trust 2005-FR4 Mortgage Pass-Through Certificates,
Series 2005-FR4, Appellant, v Mbaye Ndiaye, Respondent, et al., Defendants. |
Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), for appellant.
Stella Azie, Bronx, for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 9, 2015, which granted the motion of defendant Mbaye Ndiaye to dismiss the complaint as against him with prejudice, unanimously reversed, on the law, without costs and the motion denied.
The dismissals of plaintiff's prior actions without prejudice premised on lack of standing were not dismissals on the merits for res judicata purposes (see Tico, Inc. v Borrok, 57 AD3d 302 [1st Dept 2008]). Despite the purportedly invalid assignment of the note to plaintiff, plaintiff may nevertheless establish its standing by demonstrating that the note was in its possession or that it was delivered prior to the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362 [2015]). Concur—Acosta, J.P., Mazzarelli, Feinman and Webber, JJ.