| Petra CRE CDO 2007-1, Ltd. v 160 Jamaica Owners, LLC |
| 2010 NY Slip Op 04161 [73 AD3d 883] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Petra CRE CDO 2007-1, Ltd., Respondent, v 160 JamaicaOwners, LLC, et al., Appellants, et al., Defendants. |
—[*1] Winston & Strawn, LLP, New York, N.Y. (Christopher J. Paolella of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants 160 Jamaica Owners, LLC, RichardCohen, Kenneth Olson, and Poko Management Corp. appeal, as limited by their brief, from somuch of an order of the Supreme Court, Queens County (Nelson, J.), entered August 7, 2009, asgranted those branches of the plaintiff's motion which were for summary judgment on thecomplaint insofar as asserted against them and dismissing their counterclaim, and to appoint areferee to compute the amount due to the plaintiff.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff established its prima facie entitlement to judgment as a matter of law bysubmitting proof of the existence of the mortgage, the unpaid note, and the appellants' default inpayment (see Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482 [2003]; VillageBank v Wild Oaks Holding, 196 AD2d 812 [1993]). In opposition, the appellants raisedvarious affirmative defenses, including, inter alia, breach of contract and breach of the covenantof good faith and fair dealing, and asserted a counterclaim for damages. However, in the loandocuments, the appellants validly waived all defenses, counterclaims, and setoffs (see Bankof Suffolk County v Kite, 49 NY2d 827, 828 [1980]; Quest Commercial, LLC v Rovner, 35 AD3d 576 [2006]; PGAMktg. v Windsor Plumbing Supply, 124 AD2d 576, 577 [1986]). Accordingly, the SupremeCourt properly granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint insofar as asserted against the appellants, and dismissing theircounterclaim, and to appoint a referee to compute the amount due to the plaintiff. Rivera, J.P.,Fisher, Florio and Austin, JJ., concur.