| Popular Fin. Servs., LLC v Williams |
| 2008 NY Slip Op 02983 [50 AD3d 660] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Popular Financial Services, LLC,Respondent-Appellant, v Waveney Williams et al., Respondents, E-Home Credit Corp.,Formerly Known as FHB Funding Corp., et al., Appellants-Respondents, et al.,Defendants. |
—[*1] Stim & Warmuth, P.C., Farmingville, N.Y. (Paula J. Warmuth of counsel), forrespondent-appellant. Profeta & Eisentein, New York, N.Y. (Jethro M. Eisenstein of counsel), forrespondents.
In an action to foreclose a mortgage, the defendants E-Home Credit Corp., formerly knownas FHB Funding Corp. and Michael Bode appeal, as limited by their brief, from stated portions ofan order of the Supreme Court, Kings County (Hinds-Radix, J.), dated September 27, 2006,which, inter alia, denied that branch of their cross motion which was for summary judgmentdismissing the complaint insofar as asserted against them, and the plaintiff cross-appeals, aslimited by its brief, from so much of the same order as denied those branches of its motion whichwere for summary judgment on the complaint and dismissing the second and third counterclaimsof the defendants Waveney Williams and Rosamund Barclay insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs to the defendants Waveney Williams and Rosamund Barclay payable by the plaintiff andthe defendants E-Home Credit Corp., formerly known as FHB Funding Corp. and Michael Bode.
The plaintiff met its initial burden of establishing its entitlement to a judgment of foreclosureas a matter of law by producing the mortgage, the unpaid note, and evidence of default (see U.S. Bank Trust N.A. Trustee v Butti,16 AD3d 408 [2005]; Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482[2003]; FGH Realty Credit Corp. v VRD Realty Corp., 231 AD2d 489, 490 [1996]).However, in opposition, [*2]the defendants Waveney Williamsand Rosamund Barclay (hereinafter the mortgagors) raised triable issues of fact with respect totheir third counterclaim as to whether they were fraudulently induced to enter into the subjectmortgage (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, triableissues of fact exist with respect to the mortgagors' second counterclaim alleging violations ofGeneral Business Law § 349 (cf. New York Univ. v Continental Ins. Co., 87 NY2d308, 320 [1995]). Accordingly, the Supreme Court properly denied those branches of theplaintiff's motion which were for summary judgment on the complaint and dismissing themortgagors' second and third counterclaims insofar as asserted against it.
The plaintiff's contention that it was entitled to a judgment of foreclosure against thedefaulting defendants, New York City Parking Violations Bureau and New York CityEnvironmental Control Board, was not addressed in the order appealed from and thus is notproperly before us (see Morris vQueens-Long Is. Med. Group, P.C., 43 AD3d 394, 395 [2007]; Thompson v Leben Home for Adults,39 AD3d 624, 626 [2007]).
The remaining contentions of the defendants E-Home Credit Corp., formerly known as FHBFunding Corp. and Michael Bode are without merit. Lifson, J.P., Ritter, Florio and Carni, JJ.,concur.