| Rossrock Fund II, L.P. v Osborne |
| 2011 NY Slip Op 01638 [82 AD3d 737] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Rossrock Fund II, L.P., Respondent, v George R. Osborneet al., Appellants, et al., Defendants. |
—[*1] MacVean, Lewis, Sherwin & McDermott P.C., Middletown, N.Y. (Kevin F. Preston andFerol Reed McDermott of counsel), for respondent.
In an action to foreclose two mortgages, the defendants Patrisha Osborne and George R.Osborne appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated August3, 2009, which denied that branch of their motion which was for summary judgment dismissingthe complaint insofar as asserted against them and, in effect, denied that branch of their motionwhich was to voluntarily discontinue their counterclaim, and granted the plaintiff's cross motionfor summary judgment on the complaint and dismissing the counterclaim.
Ordered that the appeal by the defendant Patrisha Osborne is dismissed as abandoned(see 22 NYCRR 670.8 [a]); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
"[I]n moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its case as a matter of law through the production of the mortgage, the unpaid note,and evidence of default" (Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482 [2003][internal quotation marks omitted], quoting Village Bank v Wild Oaks Holding, 196AD2d 812, 812 [1993]). Here, the plaintiff produced the notes and mortgages executed by,among others, the defendant George R. Osborne (hereinafter the appellant), as well as evidenceof nonpayment. Accordingly, the plaintiff met its prima facie burden of demonstrating itsentitlement to judgment as a matter of law on the complaint.
In response, the appellant failed to raise a triable issue of fact as to his defenses to thecomplaint (see Wells Fargo Bank Minn.,N.A. v Perez, 41 AD3d 590 [2007]). The appellant's contention that the statements andconduct of the plaintiff's predecessor constituted an oral waiver of the right to foreclose is beliedby his own affidavit, in which he avers that he "understood that [the plaintiff's predecessor]could, on any given day, decide to begin foreclosure" (see generally Nassau Trust Co. vMontrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]; cf. Southold Sav. Bank vCutino, 118 AD2d [*2]555 [1986]). Moreover, the mortgagedocuments relating to the first mortgage contain a clause barring oral waivers (see City ofNew York v Grosfeld Realty Co., 173 AD2d 436 [1991]). Even had the plaintiff'spredecessor orally waived its right to foreclose, "[a] waiver, . . . not being a bindingagreement, can, to the extent that it is executory, be withdrawn, provided the party whoseperformance has been waived is given notice of withdrawal and a reasonable time after noticewithin which to perform" (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2dat 184 [citation omitted]). Here, correspondence sent to the appellant by the plaintiff uponassignment of the loans to the plaintiff operated to provide the appellant with notice of theplaintiff's intention to foreclose, and also provided the appellant with two opportunities toreinstate the loans. Accordingly, to the extent that the right to foreclose was validly orallywaived, the waiver was thereafter validly withdrawn (see Barclay's Bank of N.Y. v Smitty'sRanch, 122 AD2d 323 [1986]; see generally 1 Bergman, New York MortgageForeclosures § 5.02 [3]).
The plaintiff demonstrated its entitlement to judgment as a matter of law dismissing theappellant's counterclaim by establishing that it did not modify or violate the loan documents. Theappellant failed to raise a triable issue of fact in response.
The appellant's remaining contentions are without merit. Skelos, J.P., Florio, Balkin andLeventhal, JJ., concur.