| Ferri v Ferri |
| 2010 NY Slip Op 02510 [71 AD3d 949] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Sam Ferri, Respondent-Appellant, v Donna Ferri,Appellant-Respondent, et al., Defendants. |
—[*1] Christopher Riley, White Plains, N.Y., for respondent-appellant.
In an action to foreclose a mortgage, the defendant Donna Ferri appeals, as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), enteredMarch 31, 2009, as granted the plaintiff's motion for summary judgment on the complaint, anddenied that branch of her cross motion which was for summary judgment declaring that themortgage is a nullity, and the plaintiff cross-appeals from stated portions of the order.
Ordered that the cross appeal by the plaintiff is dismissed as abandoned; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiff's motion for summary judgment on the complaint and substituting therefor a provisiondenying the motion; as so modified, the order is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
On his motion for summary judgment on the complaint, the plaintiff established his primafacie entitlement to judgment as a matter of law by submitting the mortgage, the underlying note,and evidence of a default (seeCountrywide Home Loans, Inc. v Delphonse, 64 AD3d 624, 625 [2009]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 244-245 [2007]; Marculescu v Ovanez, 27 AD3d 701 [2006]; RCR Servs. vHerbil Holding Co., 229 AD2d 379 [1996]). However, in opposition to the motion, thedefendant Donna Ferri (hereinafter the appellant) submitted evidence raising a triable issue offact as to the validity of the mortgage, in particular, evidence of lack of consideration for thatmortgage (see Rose v Levine, 52AD3d 800, 801 [2008]; see alsoCadle Co. II, Inc. v McLean, 42 AD3d 509, 511 [2007]). Accordingly, the SupremeCourt should have denied the plaintiff's motion for summary judgment on the complaint.
The Supreme Court properly determined that the doctrine of collateral estoppel, based oncertain provisions of a judgment of divorce between the appellant and the defendant AnthonyFerri, did not bar the plaintiff from bringing this foreclosure action (see Pouncy v Dudley, 27 AD3d633, 634 [2006]; see also Community Natl. Bank & Trust Co. of N.Y. v Wisan, 185AD2d 870, 871 [1992]). Consequently, the Supreme [*2]Courtdid not err in denying that branch of the appellant's cross motion which was for summaryjudgment declaring that the mortgage is a nullity based on that divorce judgment.
The appellant waived the defense of the statute of limitations, as that defense was raisedneither in her answer nor in a pre-answer motion to dismiss the complaint (see CPLR3211 [e]).
The cross appeal must be dismissed as abandoned, as the plaintiff does not seek in his briefreversal or modification of any portion of the order (see Sirma v Beach, 59 AD3d 611, 614 [2009]; Bibas v Bibas, 58 AD3d 586, 587[2009]). Rivera, J.P., Angiolillo, Dickerson and Roman, JJ., concur.