| ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition,LLC |
| 2011 NY Slip Op 07931 [89 AD3d 506] |
| November 10, 2011 |
| Appellate Division, First Department |
| ING Real Estate Finance (USA) LLC et al.,Respondents, v Park Avenue Hotel Acquisition, LLC, Appellant, et al.,Defendants. |
—[*1] Morrison & Foerster LLP, New York (Rachel M. Wertheimer of counsel), forrespondents.
Order, Supreme Court, New York County (James A. Yates, J.), entered November 22, 2010,which, in a mortgage foreclosure action, to the extent appealed from as limited by the briefs,granted plaintiff lenders' motion for summary judgment as against defendant-appellant borrower,unanimously affirmed, with costs.
Plaintiffs established prima facie their right to foreclosure with undisputed evidence thatdefendant failed to pay the outstanding principal due under the parties' loan agreements (see JPMCC 2007-CIBC19 Bronx Apts.,LLC v Fordham Fulton LLC, 84 AD3d 613 [2011]). In opposition, defendant failed toraise an issue of fact as to its unclean hands and bad faith affirmative defenses (id.).Indeed, defendant did not provide any evidentiary proof that plaintiffs' alleged conflict of interestcaused or contributed to the failed negotiations of a prenegotiation agreement (see MarineMidland Bank v Cafferty, 174 AD2d 932, 934-935 [1991]). Under the circumstances, thecourt properly determined that discovery on the issue is unwarranted. In view of the foregoing,we need not address defendant's argument regarding the waiver provision in the parties' mastercredit agreement.
We have considered defendant's remaining contentions and find them unavailing.Concur—Saxe, J.P., Sweeny, DeGrasse, Manzanet-Daniels and RomÁn, JJ.