CPLR 322(a) Permits a Defendant to Demand Proof of Plaintiff’s Counsel’s Authority to Commence an Action Affecting Title to Real Property

By: Jonathan H. Freiberger

Regular readers of this BLOG know that we frequently write about issues affecting title to real property -- such as mortgage foreclosure, specific performance of real estate transactions and quiet title actions. However, until today, we have never written about CPLR 322(a), which provides that:

Where the defendant in an action affecting real property has not been served with evidence of the authority of the plaintiff's attorney to begin the action, he may move at any time before answering for an order directing the production of such evidence. Any writing by the plaintiff or his agent requesting the attorney to begin the action or ratifying his conduct of the action on behalf of the plaintiff is prima facie evidence of the attorney's authority.

Thus, CPLR 322(a) permits a defendant in an action affecting title to real property to demand proof that the plaintiff’s counsel was authorized to commence the action.

In Bank of New York Mellon Trust Co., N.A. v. Berokhim, 231 A.D.3d 916 (2d Dep’t 2024), the plaintiff commenced an action to quiet title to real property and the defendant moved, pursuant to CPLR 322(a), to compel the production of written evidence of counsel’s authority to prosecute the action. The defendant appealed from the denial of the motion. The Second Department affirmed, holding that “plaintiff's counsel sufficiently established that his law firm was authorized to prosecute this action by submitting a copy of a letter from the plaintiff's servicing agent indicating that the law firm had such authority.” Bank of New York, 231 A.D.3d at 917 (citation omitted). The Second Department came to the same conclusion on similar evidence in Chase Manhattan Bank v. Beckerman, 271 A.D.2d 392 (2000).

In Wilmington Trust, N.A. v. Hilton, 81 Misc. 3d 1225(A) (Sup. Ct. Suffolk Co. October 31, 2023), the court granted the defendant’s motion under CPLR 3211(a) and directed the plaintiff to produce certain information. Wilmington was a mortgage foreclosure action. After being served with process, the defendant, informally, demanded proof of the authority of plaintiff’s counsel to commence the action. According to the court:

Plaintiff's response [to the defendant’s request] was an affidavit to which Planet Home Lending, LLC (Planet) swore by having a Planet senior vice president sign the affidavit. According to the signature block, Planet's execution and acknowledgement of the affidavit was in the capacity of agent for the named plaintiff in this action. The affidavit includes a limited power of attorney that empowers Planet, as attorney-in-fact for plaintiff, to cause the commencement of foreclosure litigation and to execute documents like the affidavit which is an integral component of the expressly delegated power from plaintiff as principal to Planet as agent to pursue, prosecute, and defend foreclosure actions. The affidavit contains proof that plaintiff directly or indirectly engaged plaintiff's counsel to bring this specific foreclosure action.

Wilmington, 81 Misc. 3d at 1-2 (record references omitted). Not satisfied with the response of the plaintiff’s counsel, the defendant moved pursuant to CPLR 322(a) for an “order dismissing the action or directing the production of such evidence,” “claiming that because the affidavit was not accompanied by the agreement to which certain provisions of the power of attorney refer, the affidavit is, in effect, worthless”. Id.

The Wilmington court noted that while CPLR 322(a) does not expressly authorize dismissal, it need not reach that issue because “in this action, if plaintiff did not comply with defendant's CPLR 322 demand, the proper remedy would be an order to compel compliance with the prospect of a contempt remedy looming for failure to comply with the order compelling compliance.” Id. at *2.

In granting the defendant’s motion, the Wilmington court stated:

The issue is how much proof is enough? Here, because the limited power of attorney is subject to the provisions of an agreement that plaintiff did not disclose, plaintiff has not furnished adequate proof. Had the principal itself signed a letter setting forth that the relevant trust "authorized [such and so counsel] to commence a mortgage foreclosure action against [defendants], and the attorneys did commence such an action under index number ######-#### (Suffolk County Supreme Court)" then plaintiff would not need to make further disclosure because the writing came from the principal. Here, the writing is from the agent, so more is required.

      * * *

Therefore, here, defendant is entitled to have produced to it the entire pooling and servicing agreement to which the limited power of attorney refers, thereby curing the problem with the already disclosed writing, namely that nothing from a source other than agents exists.

Id.

Against this backdrop, we discuss Deutsche Bank Nat. Trust Co. v. McElroy, decided by the Second Department on April 22, 2026. Deutsche Bank is a mortgage foreclosure action that the defendant moved to dismiss pursuant to, inter alia, CPLR 322(a). In opposing the motion, the plaintiff:

submitted an affidavit of … an assistant vice president [the “AVP’] of Specialized Loan Servicing, LLC (hereinafter SLS), its servicer and attorney-in-fact, along with a limited power of attorney appointing SLS its attorney-in-fact with respect to certain "enumerated transactions," including "[t]he full enforcement and preservation of the [plaintiff's] interests in [mortgage loans for which the plaintiff was acting as Trustee] . . . by way of . . . foreclosure . . . or the completion of judicial or non-judicial foreclosure." [The AVP] averred in his affidavit, among other things, that SLS retained [the plaintiff’s law firm] as counsel "for the purpose of commencing and representing [the plaintiff] throughout this action" and that [the plaintiff’s law firm] "had the authority to begin this action on behalf of Plaintiff."

On the defendant’s appeal from the denial of his motion, the Second Department affirmed and stated:

Here, the plaintiff sufficiently established that [the plaintiff’s law firm] was authorized to commence this action by submitting [the AVP]'s affidavit indicating that [the plaintiff’s law firm] had such authority, accompanied by a power of attorney authorizing the plaintiff's servicing agent to act on the plaintiff's behalf. [Citations omitted.]

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.