Peter G. McKiernan, White Plains, NY, appellant pro se.

Maidenbaum & Associates, PLLC, Merrick, NY (Eric J. Canals of counsel), for respondent.

In an action for a renewal judgment pursuant to CPLR 5014, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated August 6, 2020, and (2) a renewal judgment of the same court dated August 12, 2020. The order granted the plaintiff's motion for summary judgment on the complaint and to strike the defendant's answer and, in effect, denied the defendant's motion pursuant to CPLR 3211 (a) to dismiss the complaint. The renewal judgment, upon the order, in effect, is in favor of the plaintiff and against the defendant in the total sum of $66,552.58.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the renewal judgment is reversed, on the law, the plaintiff's motion for summary judgment on the complaint and to strike the defendant's answer is denied, the defendant's motion pursuant to CPLR 3211 (a) to dismiss the complaint is granted, and the order is modified accordingly; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The plaintiff commenced this action on October 3, 2019, pursuant to CPLR 5014 to extend an unsatisfied money judgment (hereinafter the original judgment) as the alleged assignee of that judgment. The original judgment was entered on February 1, 2000, in favor of Chase Manhattan Bank USA, N.A. (hereinafter Chase), and against the defendant, upon his default, in the total sum of $23,142.05.

The plaintiff moved for summary judgment on the complaint and to strike the defendant's answer. The defendant opposed the motion and moved pursuant to CPLR 3211 (a) to dismiss the complaint. In an order dated August 6, 2020, the Supreme Court granted the plaintiff's motion and, in effect, denied the defendant's motion. On August 12, 2020, a renewal judgment was entered upon the order, in effect, in favor of the plaintiff and against the defendant in the total sum of $66,552.58. The defendant appeals.

[*2] The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the renewal judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the renewal judgment (see CPLR 5501 [a] [1]).

In support of its motion, the plaintiff failed to establish its prima facie entitlement to a renewal judgment, as it did not submit evidentiary proof that it was the assignee of the original judgment creditor, Chase, prior to the commencement of this action (see CPLR 5014 [1]; Premier Capital, LLC v Best Traders, Inc., 88 AD3d 677, 678 [2011]; see also Cadle Co. v Biberaj, 307 AD2d 889, 889 [2003]). An examination of an affidavit of the plaintiff's president submitted in support of the motion reveals that it fails to establish the date and circumstances of the assignment, if any, of the original judgment.

In support of his motion, the defendant established that the plaintiff lacked standing to commence this action, since the assignment of judgment was executed on October 16, 2019, subsequent to the commencement of this action, even though the assignment contained a retroactive effective date of July 10, 2000. To commence an action, the plaintiff must have a legal interest in the debt (see Katz v East-Ville Realty Co., 249 AD2d 243 [1998]). "Where the plaintiff is the assignee of the [judgment] at the time the . . . action was commenced, the plaintiff has standing to maintain the action" (Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547 [2003]). Here, the plaintiff lacked standing to commence this action because it was not the assignee of the original judgment on October 3, 2019, the day the action was commenced (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]). "While recognizing that in some circumstances parties to an agreement may bind themselves retroactively, 'the fiction of retroactivity . . . should not be applied to affect adversely the rights of third persons' " (id. at 210, quoting Debreceni v Outlet Co., 784 F2d 13, 20 [1st Cir 1986]). Thus, a retroactive assignment cannot be used to confer standing upon the assignee in an action commenced prior to the execution of the assignment (see Wells Fargo Bank, N.A. v Marchione, 69 AD3d at 208; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912 [2009]).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the complaint and to strike the defendant's answer and granted the defendant's motion pursuant to CPLR 3211 (a) to dismiss the complaint.

The defendant's remaining contentions either are without merit or need not be reached in light of our determination. Connolly, J.P., Iannacci, Genovesi and Love, JJ., concur.