Waterfall Victoria Master Fund, Ltd v Dingilian

2012 NY Slip Op 01372 [92 AD3d 593]

February 23, 2012

Appellate Division, First Department

As corrected through Wednesday, March 28, 2012

Waterfall Victoria Master Fund, Ltd,Respondent, v Edward G. Dingilian, Appellant, et al.,Defendants.

—[*1]F. Todd McLoughlin, New York, for appellant.

Jaspan Schlesinger, LLP, Garden City (Antonia M. Donohue of counsel), forrespondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 18, 2011,which to the extent appealed from as limited by the briefs, granted plaintiff's motion for summaryjudgment, unanimously affirmed, without costs.

Plaintiff established prima facie its right to foreclosure and to a deficiency judgment againstdefendant Edward G. Dingilian by producing the mortgage documents underlying the transactionand evidence of nonpayment, which default defendant failed to rebut, as well as the personalguaranty signed by defendant as additional collateral for the mortgage. Defendant failed to raisean issue of fact as to any defense (see Hypo Holdings v Chalasani, 280 AD2d 386 [2001],lv denied 96 NY2d 717 [2001]). Defendant's argument that an affidavit in support of themotion was based entirely upon inadmissible hearsay and incorrect information is unpreserved,and in any event, it is unavailing. Further, the court properly permitted plaintiff to discontinue theaction against the decedent, who had conveyed the mortgaged property prior to his death (see [*2]DLJMtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857 [2008]).

We have considered defendant's other arguments and find them unavailing.Concur—Tom, J.P., Friedman, Sweeny, Moskowitz and DeGrasse, JJ.