| Swedbank, AB, N.Y. Branch v Hale Ave. Borrower, LLC |
| 2011 NY Slip Op 08345 [89 AD3d 922] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Swedbank, AB, New York Branch, Appellant, v Hale AvenueBorrower, LLC, et al., Respondents, et al., Defendants. |
—[*1] Silverman Sclar Shin & Byrne PLLC, New York, N.Y. (Peter R. Silverman, Alan M. Sclar,Mikhail Ratner, Peter R. Silverman, and Vincent Chirico of counsel), for respondents.
In an action, inter alia, to foreclose two mortgages, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Solomon, J.), dated December 9, 2010, asdenied its motion for summary judgment on its causes of action to foreclose two mortgages on propertyowned by the defendant Hale Avenue Borrower, LLC, and for leave to enter a default judgmentagainst the defendants Alexander Gurevich and Gennady Kiselman upon their failure to appear oranswer the complaint, denied its separate motion for a protective order to preclude discovery and toquash certain discovery demands, and granted that branch of the cross motion of the defendants HaleAvenue Borrower, LLC, Alexander Gurevich, and Gennady Kiselman which was to compel theplaintiff to accept their amended answer.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in theexercise of discretion, with costs, the plaintiff's motion for summary judgment on its causes of action toforeclose two mortgages on property owned by the defendant Hale Avenue Borrower, LLC, and forleave to enter a default judgment against the defendants Alexander Gurevich and Gennady Kiselmanupon their failure to appear or answer the complaint is granted, the plaintiff's separate motion for aprotective order to preclude discovery and to quash certain discovery demands is denied as academic,and that branch of the cross motion of the defendants Hale Avenue Borrower, LLC, AlexanderGurevich, and Gennady Kiselman which was to compel it to accept their amended answer is denied.
The plaintiff commenced this action to foreclose two mortgages on certain property owned by thedefendant Hale Avenue Borrower, LLC (hereinafter Hale Avenue Borrower), and to recover onguaranties executed by the defendants Alexander Gurevich and Gennady Kiselman (hereinaftercollectively the respondents).
The Supreme Court should have granted that branch of the plaintiff's motion which was forsummary judgment on its causes of action to foreclose on the mortgages. The plaintiff [*2]established its prima facie entitlement to judgment as a matter of law bysubmitting the relevant mortgages, the underlying notes, and evidence of default (see Rossrock Fund II, L.P. v Osborne, 82AD3d 737 [2011]; Wells Fargo Bank,N.A. v Cohen, 80 AD3d 753, 755 [2011]; Petra CRE CDO 2007-1, Ltd. v 160 Jamaica Owners, LLC, 73 AD3d883, 884 [2010]; Household Fin. RealtyCorp. of N.Y. v Winn, 19 AD3d 545, 546 [2005]). In opposition, Hale Avenue Borrowerfailed to raise a triable issue of fact regarding its defenses (see Amalgamated Tr. Union Local 1181, AFL-CIO v City of New York, 45AD3d 788, 790 [2007]; QuestCommercial, LLC v Rovner, 35 AD3d 576 [2006]; Palm Beach Mtge. Mgt., LLC v Red Tulip, LLC, 18 AD3d 379, 380[2005]; compare Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 178[1982], Pellicane v Norstar Bank, 213 AD2d 610, 611 [1995], with Rossrock Fund II,L.P. v Osborne, 82 AD3d at 737). Moreover, contrary to the respondents' contention, that branchof the motion was not properly denied as premature on the ground that discovery had not yet beencompleted. The respondents failed to demonstrate that they made reasonable attempts to discover thefacts which would give rise to a triable issue of fact or that further discovery might lead to relevantevidence (see CPLR 3212 [f]; Cortes v Whelan, 83 AD3d 763, 764 [2011]; Sasson v Setina Mfg. Co., Inc., 26 AD3d487, 488 [2006]).
Further, the Supreme Court should have granted that branch of the plaintiff's motion which was forleave to enter a default judgment against Gurevich and Kiselman and denied that branch of therespondents' cross motion which was to compel the plaintiff to accept their amended answer. Tosuccessfully oppose the plaintiff's motion and in support of the cross motion, Gurevich and Kiselmanwere required to demonstrate a reasonable excuse for their default in appearing or answering thecomplaint and the existence of a potentially meritorious defense (see Ogman v Mastrantonio Catering, Inc., 82 AD3d 852, 853 [2011];Maspeth Fed. Sav. & Loan Assn. vMcGown, 77 AD3d 890, 891 [2010]; May v Hartsdale Manor Owners Corp., 73 AD3d 713 [2010]). Giventhe failure of Gurevich and Kiselman to proffer either a reasonable excuse for their default or apotentially meritorious defense to the complaint insofar as asserted against them, the Supreme Courtimprovidently exercised its discretion in excusing the default (see Maspeth Fed. Sav. & Loan Assn.v McGown, 77 AD3d at 891; Pampalone v Giant Bldg. Maintenance, Inc., 17 AD3d 556, 557 [2005];Boulton v Fuchsberg, 177 AD2d 534, 536 [1991]).
In light of our determination that the plaintiff was entitled to summary judgment on its causes ofaction to foreclose on the mortgages and that it is entitled to leave to enter a default judgment againstGurevich and Kiselman, the plaintiff's motion for a protective order to preclude discovery and to quashcertain discovery demands should have been denied as academic. Skelos, J.P., Hall, Lott and Roman,JJ., concur.