| Hellas Fos, Inc. v Russo |
| 2011 NY Slip Op 04419 [84 AD3d 1166] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Hellas Fos, Inc., Appellant, v Antonio Russo et al.,Defendants, and Bayview Loan Servicing, LLC, Respondent. |
—[*1] Fidelity National Law Group, New York, N.Y. (Danielle Simone of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the SupremeCourt, Suffolk County (Whelan, J.), dated December 18, 2009, which granted the motion of thedefendant Bayview Loan Servicing, LLC, for summary judgment dismissing the complaintinsofar as asserted against it, and (2) a judgment of the same court entered August 25, 2010,which, upon the order dated December 18, 2009, and upon an order dated May 19, 2010, interalia, granting the cross motion of the defendant Bayview Loan Servicing, LLC, to modify theorder dated December 18, 2009, to include a declaration regarding the discharge of the plaintiff'smortgage, is in favor of the defendant Bayview Loan Servicing, LLC, and against the plaintiff, ineffect, dismissing the complaint insofar as asserted against the defendant Bayview LoanServicing, LLC, and declaring that the plaintiff's mortgage was discharged and that the mortgageheld by the defendant Bayview Loan Servicing, LLC, is superior to it.
Ordered that the appeal from the order dated December 18, 2009, is dismissed; and it isfurther,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant Bayview Loan Servicing, LLC.
The appeal from the intermediate order dated December 18, 2009, must be dismissedbecause the right of direct appeal therefrom terminated with the entry of judgment in the action(see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from theorder dated December 18, 2009, are brought up for review and have been considered on theappeal from the judgment (see CPLR 5501 [a] [1]).
In 1985, Matthew Patkowski and Margaret Patkowski owned certain premises and obtained amortgage on those premises to secure a debt of $539,000, which mortgage was eventually [*2]assigned to Adrienne D. Groom. In October 2005, the premiseswere sold, and a new mortgage was obtained from a commercial lending corporation, whicheventually was assigned to the defendant Bayview Loan Servicing, LLC (hereinafter Bayview).As part of the 2005 transaction and pursuant to an agreement executed by Groom and herpredecessor in interest, a payment of $135,000 was made to Groom, who then executed asatisfaction of mortgage, along with an affidavit indicating that the outstanding balance of the1985 note had been paid in full. Subsequently, in May 2007, Groom purported to assign herinterest in the 1985 mortgage to the plaintiff, who commenced this action to foreclose on thatmortgage, claiming an outstanding balance of $400,000.
Bayview established its prima facie entitlement to judgment as a matter of law dismissing thecomplaint insofar as asserted against it by submitting evidence that the debt underlying themortgage assigned to the plaintiff had been paid in full prior to the assignment (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]; FGB Realty Advisors vParisi, 265 AD2d 297, 298 [1999]). In opposition, the plaintiff submitted no evidencedemonstrating the existence of a triable issue of fact as to whether the $135,000 payment made toGroom was intended to be only a partial payment on the 1985 debt (see Zuckerman v City ofNew York, 49 NY2d at 562; FGB Realty Advisors v Parisi, 265 AD2d at 298). Theplaintiff contends that the documents evidencing the full payment of the note and satisfaction ofthe mortgage were not reliable and suggests that the 2005 transaction was fraudulent. However,such conclusory and speculative allegations are insufficient to defeat summary judgment (seeFreedman v Chemical Constr. Corp., 43 NY2d 260, 264 [1977]; Votta v VottaEnters., 249 AD2d 536, 537 [1998]).
Accordingly, the Supreme Court properly granted summary judgment to Bayview, dismissingthe complaint insofar as asserted against it and declaring that the plaintiff's mortgage wasdischarged and that the mortgage held by Bayview is superior to it. Mastro, J.P., Leventhal,Austin and Cohen, JJ., concur.