| JPMCC 2007-CIBC19 Bronx Apts., LLC v Fordham FultonLLC |
| 2011 NY Slip Op 04173 [84 AD3d 613] |
| May 19, 2011 |
| Appellate Division, First Department |
| JPMCC 2007-CIBC19 Bronx Apartments, LLC,Appellant, v Fordham Fulton LLC et al., Respondents, et al.,Defendants. |
—[*1] Zane and Rudofsky, New York (Eric S. Horowitz of counsel), for Fordham Fulton LLC andMark Karasick, respondents. Troutman Sanders, New York (Daniel N. Anziska, Mitchell Hill and Adam S. Libove ofcounsel), for Terrace Fulton Associates, L.P., Terrace Fordham Associates, L.P., Fulton TerraceLLC, and CF Fulton, LLC, respondents.
Order, Supreme Court, Bronx County (Mary Brigantti-Hughes, J.), entered November 16,2010, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion forsummary judgment on its foreclosure cause of action against defendants Fordham Fulton LLCand Mark Karasick, unanimously reversed, on the law, without costs, and the motion granted.The Clerk is directed to enter judgment accordingly.
Plaintiff established prima facie its right to foreclosure by producing the mortgage and thenote, which was unpaid, and uncontroverted evidence that defendants had made no payments asof February 1, 2009; defendants failed to raise an issue of fact as to any defense to foreclosure(see Hypo Holdings v Chalasani, 280 AD2d 386 [2001], lv denied 96 NY2d 717[2001]; Marine Midland Bank v Fillippo, 276 AD2d 601 [2000]). In this regard,defendants "faced an insurmountable obstacle" (see Red Tulip, LLC v Neiva, 44 AD3d 204, 209 [2007], lvdismissed 10 NY3d 741 [2008]). They expressly waived any defense to foreclosure on themortgage and the note, they agreed in the first and second prenegotiation agreements that theywere barred from bringing any claim or raising any defense to foreclosure arising out of theparties' postdefault communications regarding a potential restructuring of the loan, and theyentered into a stipulation of discontinuance of their affirmative defenses with prejudice.Concur—Andrias, J.P., Friedman, Freedman, Richter and RomÁn, JJ.