DECISION AND ORDER In this action seeking foreclosure on a mortgage and the sale of the real property it encumbers, defendants seek an order pursuant to CPLR §3211(a)(1) and (3), dismissing the complaint based on documentary evidence and for lack of standing. Saliently, de fendants contend that plaintiff lacks standing to bring the instant action because the letters of administration granted to it do not authorize it to commence the instant action and because plaintiff does not hold the complete note evincing the debt. Plai ntiff opposes the instant motion asserting, inter alia, that the documents on which defendants rely, fail to establish that plaintiff lacks standing to bring and maintain this action insofar as plaintiff has unrestricted letters of administration and, as p leaded, does in fact hold the note evincing the debt between defendants and decedent. For the reasons that follow hereinafter, defendants’ motion is denied. The instant action is for foreclosure on a mortgage and the sale of the real property it encumbers. The complaint alleges the following. On July 17, 2018, defendant 1852 WESTCHESTER PROPERTY MGMT CORP. (Westchester Property) executed and delivered a note evincing a loan in the amount of $500,000 to nonparty Paquita Carchi (Carchi). On the same day, Westchester Property executed a mortgage, pledging as collateral the premises located at 1852 Westchester Avenue, Bronx NY 10472 (1852). To further secure the note defendant BRAM BERG executed a guaranty, wherein he personally guaranteed all sums due under the note. Pursuant to the foregoing note, the failure to make a payment when due constituted a default thereunder. On April 13, 2020, Westchester Property failed to make a payment when due and therefore, defaulted under the terms of the note. Plaintiff holds and owns the note and the mortgage. Based on the foregoing, plaintiff seeks a judgment of foreclosure and sale. Defendants’ motion to dismiss upon documentary evidence establishing a lack of standing is hereby denied. Significantly, contrary to defendants’ assertion, the unrestricted letters of administration granted to plaintiff upon Carchi’s death do not preclude plaintiff from initiating and prosecuting this action. Moreover, the purported additional agreement between the parties, on this record, do not constitute the note, such that defendants fail to establish that plaintiff does not own and hold the note between defendants and Carchi. Pursuant to CPLR §3211(a)(1), a pre-answer motion for dismissal based upon documentary evidence should only be granted when “the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v. Martinez, 84 NY2d 83, 88 [1994]; IMO Industries, Inc. v. Anderson Kill & Olick, P.C., 267 AD2d 10, 10 [1st Dept 1999]). Much like on a motion pursuant to CPLR §3211(a)(7), on a motion to dismiss pursuant to CPLR §3211(a)(1), the allegations in plaintiff’s complaint are accepted as true, constructed liberally and given every favorable inference (Arnav Industries, Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 NY2d 300, 303 [2001], overruled on other grounds by Oakes v. Patel, 20 NY3d 633 [2013]; Hopkinson III v. Redwing Construction Company, 301 AD2d 837, 837-838 [3d Dept 2003]; Fern v. International Business Machines Corporation, 204 AD2d 907, 908-909 [3d Dept 1994]). Affidavits are not documentary evidence for purposes of establishing relief under CPLR §3211(a)(1) (Fleming v. Kamden Properties, LLC, 41 AD3d 781, 781 [2d Dept 2007][Here, the appellants' submissions in support of their motion included an affidavit and a verified Surrogate's Court petition which the Supreme Court properly declined to consider on a motion to dismiss pursuant to CPLR 3211(a)(1) because the submissions did not constitute documentary evidence."]; Berger v. Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2d Dept 2003]). Significantly, documentary evidence means judicial records, judgments, orders, contracts, deeds, wills, mortgages and “a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground upon which the motion is based” (Webster Estate of Webster v. State of New York, 2003 WL 728780, at *1 [Ct Cl Jan. 30, 2003]). CPLR §3211(a)(3) authorizes the dismissal of an action when “the party asserting a cause of action has not legal capacity to sue.” While not explicitly stated in the statute, a motion to dismiss for lack of standing is properly considered a motion to dismiss pursuant to CPLR §3211(a)(3) (Friedman v. Town Clerk of Town of Hempstead, 62 AD3d 699, 699 [2d Dept 2009] [Motion pursuant to CPLR §3211(a)(3) granted when petitioners lacked standing to sue.]); Hirschfeld v. Hogan, 60 AD3d 728 [2d Dept 2009]). It is well settled that in order to initiate suit, a party must have legal standing to bring an action. On the issue of legal standing the test was initially one focusing on the existence of a legal right, described as follows: [t]he court has no inherent power to right a wrong unless thereby the civil, property, or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected. The rights affected must be personal as distinguished from the rights in common with the great body of people (Schieffelin v. Komfort, 212 NY 520, 530 [1914]). Over time the threshold inquiry has evolved so that now the relevant inquiry is whether the proponent of an action has sustained injury in fact (Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 772 [1991]). Under the injury in fact analysis, standing exists when the plaintiff has sustained actual injury, meaning that he/she has an actual legal stake in the matter being litigated (id.). In order to establish standing, not only must a plaintiff demonstrate injury in fact, meaning actual harm, but he must also establish that the injury alleged falls within certain zones of interest protected by law (Friedman at 700 [Court dismissed individual petitioner's claim when she would not suffer direct harm from action at issue.]; Caprer v. Nussbaum, 36 AD3d 176, 183 [2d Dept 2006]). Generally, an injury is within the requisite zone of interest if the injury sustained falls within the ambit of “concerns sought to be promoted or protected by the statutory provision or recognized common-law relationship pursuant to which a defendant has acted.” (Caprer at 183). In other words, the injury alleged must be of the kind sought to be prevented by the law that the proponent alleges was violated. Specifically, a party must show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the “zone of interests,” or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted (Society of Plastics Indus. at 773). Because “[w]hether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” (id. at 769), whether standing exists is a threshold matter to be resolved at the outset of any litigation (id.; Caprer at 182), and when standing is lacking the “pathway to the courthouse is blocked” (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 812 [2003]). Generally, a person can only assert claims on his or her own behalf and as such, cannot generally assert claims on behalf of another (Society of Plastics Indus. at 773; Caprer at 182). However, prevailing law recognizes at least two circumstances under which a person has standing to maintain an action on behalf of another. First, a person has third-party standing to maintain an action when the party suing has suffered an injury in fact and seeks to assert the constitutional rights of another (New York County Lawyers’ Ass’n v. State, 294 AD2d 69, 74 [1st Dept 2002]). Specifically, third-party standing exists when a party demonstrates (1) the presence of some substantial relationship between the party asserting the claim and the rightholder, (2) the impossibility of the rightholder asserting his own rights, and (3) the need to avoid a dilution of the parties’ constitutional rights (id. at 75). Second, a party can establish organizational standing when it establishes that absent the suit brought by the organization, the actions by the party against whom relief is sought would otherwise be exempt from judicial review (Grant v. Cuomo, 130 AD2d 154, 159 [1st Dept 1987], affd, 73 NY2d 820 [1988]). Accordingly, the proponent of organizational standing need not establish injury in fact but must merely establish that a party has failed to comply with a statute and that the those whom the statute seeks to protect will not seek judicial intervention and, thus, a remedy (id.). In Grant, where organizational plaintiffs sued, inter alia, the City and State asserting that defendants violated their obligations to provide protective and preventive services under the Child Protective Services Act of 1973 and the Child Welfare Reform Act of 1979, the Court of Appeals concluded that plaintiffs had established organizational standing because [a]s the defendants correctly argue, the claim of the organizational plaintiffs to have suffered an injury by way of an added burden on their resources is presented in general terms only. On the other hand, we cannot ignore the obvious fact that if organizations of this kind are denied standing, the practical effect would be to exempt from judicial review the failure of the defendants, here conceded, to comply with their statutory obligations. Manifestly, the abused children are not themselves able to seek a judicial remedy, nor is it likely that parents or caretakers, the objects of the claims of abuse or maltreatment, would undertake to secure a remedy. Given the obvious reality that the protection of abused or maltreated children is a central concern of our society, and given the historic relationship of organizations concerned with the care and protection of children to the goals sought to be achieved by the relevant statute, we are persuaded that Special Term was justified in denying the motion to dismiss as to the organizational plaintiffs (id. at 108). In support of the instant motion, to the extent relevant, defendants submit the letters of administration issued to Sandra DeAgreta (DeAgreta) upon Carchi’s death on November 30, 2020. The letters indicate that they were issued on August 19, 2021, and contain a single limitation, namely that “[t]hese letters authorize the collection of a total of $260,000. The collection in excess of that amount must be authorized by a further order of the Surrogate.” Defendants also submit the petition for the letters of administration issued upon Carchi’s death to DeAgreta. The application lists the gross value of Carchi’s personal property as $260,000 and indicates that there is no “right of action exist[ing] on behalf of the decedent and survived his/her death, or…granted to the administrator of the decedent.” Defendants submit a handwritten agreement between Carchi and defendants, dated July 17, 2018, wherein referencing the sale of 1852, the parties agree that, inter alia, Carchi was to make repairs to 1852 and that if she failed to make said repairs, defendants could make them and deduct the cost from the payments due under the mortgage. Based on the foregoing, defendants fail to establish that plaintiff lacks standing to prosecute the instant action. As noted above, the proponent of dismissal pursuant to CPLR §3211(a)(1), based upon documentary evidence must present evidence, which “utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen at 32; Leon at 88; IMO Industries, Inc. at 10). Much like on a motion pursuant to CPLR §3211(a)(7), on a motion to dismiss pursuant to CPLR §3211(a)(1), the allegations in plaintiff’s complaint are accepted as true, constructed liberally and given every favorable inference (Arnav Industries, Retirement Trust at 303; Hopkinson III at 837-838; Fern at 908-909). Moreover, with regard to an application pursuant to CPLR §3211(a)(3), dismissal is warranted when the plaintiff has no legal capacity to bring or maintain an action, which means when plaintiff lacks standing to bring the action. (Friedman at 699; Hirschfeld at 728). While a person can only assert claims on his or her own behalf and as such cannot generally assert claims on behalf of another (Society of Plastics Indus. at 773; Caprer at 182), prevailing law recognizes that a person has third-party standing to maintain an action when the party suing has suffered an injury in fact and seeks to assert the constitutional rights of another (New York County Lawyers’ Ass’n at 74). Specifically, third-party standing exists when a party demonstrates (1) the presence of some substantial relationship between the party asserting the claim and the rightholder, (2) the impossibility of the rightholder asserting his own rights, and (3) the need to avoid a dilution of the parties’ constitutional rights (id. at 75). Here, rather than negate the issue of standing based on the letters of administration issued to plaintiff, the documentary evidence establishes that plaintiff — the estate of Carchi, the decedent and party to the note executed by Westchester Property — has third-party standing to bring this action. Specifically, a review of the of the relevant sections of the Surrogate’s Court Procedure Act and the relevant case law, reveals that the letters of administration issued to plaintiff, containing only one limitation, were not limited letters of administration. As such, contrary to defendants’ assertion, plaintiff had the authority to initiate this action and then prosecute it. Generally, letters of administration “may not issue unless there is a deceased person whose property requires administration” (In re Logan’s Estate, 4 Misc 2d 283, 284 [Sur Ct 1956], decree affd sub nom. Matter of Logan’s Estate, 2 AD2d 842 [1st Dept 1956], affd sub nom. In re Logan’s Estate, 3 NY2d 800 [1957]). Once issued, Pursuant to SCPA §703(1), letters granted by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them. To that end, SCPA §702, which governs the issuance of limited or restrictive letters of administration, is an exhaustive list of the limitations and restrictions a court can impose when issuing limited or restrictive letters of administration. One such limitation is the issuance of letters limited to the enforcement or prosecution of a cause of action in favor of the decedent or his fiduciary under general or special provisions of law, to the defense of any claim or cause of action against a decedent or his fiduciary, and restraining the fiduciary from compromise of the action or the enforcement of a judgment recovered therein until the further order of the court and the filing of satisfactory security if required (SCPA §702[1]). Limited letters of administration are appropriate to “help propel estate administration forward when estate beneficiaries deadlock” (Margaret Valentine Turano, Prac Commentaries, McKinney’s Cons Laws of NY, SCPA 702) [Note: online version]), and warranted when action is required in a pending action against or by the decedent (Matter of Estate of Garfinkle, 119 AD2d 911, 912 [3d Dept 1986] ["Additionally, the record establishes that Peck instituted an action in Supreme Court against decedent prior to decedent's death, which will be dismissed if no representative is substituted for decedent. Accordingly, a representative must be named"]). Preliminarily, pursuant to SCPA §703 and prevailing law, the letters of administration confer third-party standing to plaintiff as a matter of law. To be sure, the letters allow plaintiff to administer Carchi’s estate and, inter alia, bring and prosecute this action for harm to her personal property, which per her death renders it impossible for her do on her own (New York County Lawyers’ Ass’n at 74; In re Logan’s Estate at 284). Moreover, in this case, the letters of administration are not denominated as limited letters and contain none of the limitations under SCPA §702. Accordingly, to the extent that there is a limitation on the sums plaintiff can recover on behalf of Carchi, such limitation fails to — as urged — morph the otherwise unrestricted letters of administration into letters precluding the initiation of this action. Defendants’ contention that plaintiff lacks standing to bring the instant action because it does not hold the note in this action is also unavailing. First, it is well settled that in a foreclosure action, plaintiff establishes prima facie entitlement to summary judgment by submitting proof of a note, a mortgage, and defendant’s default or failure to pay (Barcy Investors, Inc. v. Sun, 239 AD2d 161, 161 [1st Dept 1997]; Chemical Bank v. Broadway 55-56th St. Assoc., 220 AD2d 308, 309 [1st Dept 2005]; Federal Home Loan Mortgage Corp. v. Karastathis, 237 AD2d 558, 558 [2d Dept 1997]; DiNardo v. Patcam Service Station Inc., 228 AD2d 543, 543 [2d Dept 1996]). Therefore, it follows that a complaint which pleads the existence of a note, a mortgage and a default thereunder is sufficient to state a cause of action for foreclosure. Here, while defendants append an agreement to their motion, they merely urge that this is an additional agreement between the parties and not the actual note. This alone fails to conclusively establish defendants’ defense that plaintiff lacks standing because although not documentary evidence, it nevertheless fails to negate the assertion in the complaint — that plaintiff holds and owns the note. In other words, what defendants argue and indeed, what the documents actually support is that in addition to the note and mortgage, there was an additional agreement, which, inter alia, required an offset to all sums due under the note if defendants were forced to make repairs that were not made by Carchi. This is not conclusive proof, as urged, establishing that plaintiff does not hold the note between defendants and Carchi. Nor could it be. Indeed, the document is nothing more than a handwritten agreement, which is bereft of all the hallmarks of a promissory note. Accordingly, the instant motion is denied. It is hereby ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof. This constitutes this Court’s decision and Order. Dated: January 7, 2023
