Sharrow v Sheridan, 2012 NY Slip Op 00773 (2nd Dept., 2012)
The mother and sister separately moved pursuant to CPLR 3211(a) to dismiss the action, contending, inter alia, that the plaintiff lacked standing to commence this action. In the order appealed from, the Supreme Court, inter alia, granted the separate motions to dismiss based upon lack of standing. The plaintiff appeals. During the pendency of the appeal, the mother died and a special administrator of her estate was substituted in the mother's place.
The Supreme Court properly granted the separate motions to dismiss based upon lack [*2]of standing. The defendants demonstrated that the mother had revoked the power of attorney naming the plaintiff as her attorney-in-fact. The plaintiff further lacked standing to commence this action as his mother's potential heir (see Schneider v David, 169 AD2d 506, 507). While his mother was alive, she had the absolute right to change her intentions regarding the distribution of her assets. Accordingly, the plaintiff's interest as his mother's potential heir was just that—a potential, speculative interest. "The rules governing standing help courts separate the tangible from the abstract or speculative injury" (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812, cert denied 540 US 1017). Thus, under these circumstances, the plaintiff lacked standing to commence this action.
JPMorgan Chase Bank, N.A. v Bauer, 2012 NY Slip Op 00932 (2nd Dept., 2012)
The plaintiff bank made a prima facie showing of entitlement to judgment as a matter of law against Bauer by submitting proof of the existence of the underlying credit agreement, Bauer's personal guaranty of the obligations of the dental practice under that agreement, and the failure of the dental practice to make payment in accordance with the terms of the credit agreement (see HSBC Bank USA, N.A. v Laniado, 72 AD3d 645; Wolf v Citibank, N.A., 34 AD3d 574, 575; Kensington House Co. v Oram, 293 AD2d 304, 304-305). Bauer failed to raise a triable issue of fact in opposition. "[S]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature," and Bauer's "affidavit was alone inadequate to raise an issue of fact necessitating a trial" (Banco Popular N.A. v Victory Taxi Mgt., 1 NY3d 381, 384; see [*2]Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574).
Bauer waived the defense of lack of standing by failing to raise it in either her answer or in a pre-answer motion to dismiss the complaint (see CitiMortgage, Inc. v Rosenthal, 88 AD3d 759; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244).