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Decided on August 29, 2007
Supreme Court, Kings County

35680/06
Karen B. Rothenberg, J.
The plaintiff, Aurora Loan Services (hereinafter Aurora), moves for the following relief: an order (1) pursuant to CPLR 3012 compelling the defendant, Philip Grant's (hereinafter Mortgagor) acceptance of service of its verified amended reply to the counterclaims; (2) dismissing the Mortgagor's affirmative defenses and counterclaims pursuant to CPLR 3211 and granting it summary judgment pursuant to CPLR 3212 on the grounds that the defenses and counterclaims have no merit; (3) striking from the caption of this action the names of "John Does" and "Jane Does" and that the title of this action be amended accordingly without prejudice to these proceedings; (4) referring the matter to a referee to ascertain and compute the amount due upon the note and mortgage being foreclosed upon and to report whether the mortgaged premises should be sold in one parcel.
Mortgagor, pro se, opposes Aurora's motion and cross-movesfor an order granting him summary judgment and dismissing Aurora's complaint, severing the counterclaims and referring the severed action to an arbitrator or hearing officer to determine damages, and imposing sanctions on Aurora's counsel for interposing a frivolous motion.
On September 29, 2004, Mortgagor borrowed the sum of $456,000.00 from Lehman Brothers Bank, FSB (hereinafter Lehman) for the purpose of purchasing real property. The loan was secured by a mortgage on the property. Mortgage Electronic Systems, Inc., (hereinafter MERS) acting as nominee for Lehman, was the mortgagee of record for the purposes of recording the mortgage. By an assignment of mortgage dated November 29, 2006, MERS assigned the note and mortgage to Aurora, who had been previously assigned to service the mortgage by Lehman. [*2]
Aurora commenced the instant foreclosure action by filing the summons and complaint and a notice of pendency on November 21, 2006 based upon Mortgagor's alleged default in making his August 1, 2006 loan payment and all subsequent payments accruing thereafter . On December 20, 2006, Mortgagor served and filed an answer raising a number of defenses, including lack of
standing, and asserted certain counterclaims [FN1].
At the outset, in light of the challenge raised in Mortgagor's answer to Aurora's standing in this matter, Aurora must prove its standing in order to be awarded any of the relief requested in its complaint (see Wells Fargo Bank Minnesota v. Mastropaolo, __ AD3d __, 837 NYS2d 247, {42 AD3d 239} 2007 NY Slip Op 04626 [2d Dept., May 29, 2007]. Standing must be determined as a preliminary matter as it is relevant to the "...question of justiciability and ...ensure[s] that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution" (Security Pac. Nat'l Bank v. Evans, 31 AD3d 278, 279, 820 NYS2d 2, 3). The critical aspect of standing is that there exists "...an injury in fact

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