| Fortress Credit Corp. v Hudson Yards, LLC |
| 2010 NY Slip Op 08640 [78 AD3d 577] |
| November 23, 2010 |
| Appellate Division, First Department |
| Fortress Credit Corp. et al., Respondents, v Hudson Yards,LLC, et al., Defendants, and Baruch Singer, Appellant. |
—[*1] Sills Cummis & Gross, P.C., New York (Mitchell D. Haddad of counsel), forrespondents.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered September 18,2009, as amended by order, same court and Justice, entered November 13, 2009, which, insofar asappealed from as limited by the briefs, granted plaintiffs' motion for summary judgment on their claimsfor foreclosure and a conditional deficiency judgment against defendant-appellant guarantor(defendant), and dismissed defendant's counterclaims, unanimously affirmed, with costs.
Plaintiffs met their prima facie burden by producing the mortgage documents and undisputedevidence of default, namely, nonpayment and a transfer of the mortgaged property without plaintiffs'prior consent; in addition, plaintiffs showed that defendant signed a personal guaranty as additionalcollateral for the note. Thus, the burden shifted to defendant to raise a triable issue of fact regarding hisaffirmative defenses to foreclosure (see RedTulip, LLC v Neiva, 44 AD3d 204, 209-210 [2007], lv denied 13 NY3d 709[2009]). Defendant's affirmative defenses, however, are precluded by the guaranty, which waived alldefenses and counterclaims except actual payment and performance in full, which defendant has notalleged (id.). It does not avail defendant that his defense—plaintiffs' alleged tortiousinterference with a potential sale of the mortgaged property for an amount in excess of the outstandingmortgage obligations—arose after the waiver had been executed (see Hotel 71 Mezz Lender LLC v Mitchell,63 AD3d 447, 448 [2009]). In any event, defendant's allegations of interference lack evidentiarysupport (see Banco Popular N. Am. vVictory Taxi Mgt., 1 NY3d 381, 383-384 [2004]). We have considered defendant's otherarguments and find them unavailing. Concur—Andrias, J.P., Catterson, Moskowitz,Manzanet-Daniels and RomÁn, JJ.