| Seaway Capital Corp. v 500 Sterling Realty Corp. |
| 2012 NY Slip Op 02667 [94 AD3d 856] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Seaway Capital Corp., Respondent, v 500 Sterling RealtyCorp., Appellant, et al., Defendants. |
—[*1] Borchert, Genovesi & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert and Robert W.Frommer of counsel), for respondent.
In an action to foreclose a mortgage, the defendant 500 Sterling Realty Corp. appeals, aslimited by its brief, from (1) so much of an order of the Supreme Court, Kings County (Kramer,J.), dated September 17, 2009, as granted those branches of the plaintiff's motion which were, ineffect, for summary judgment on the complaint insofar as asserted against it, and to strike itsanswer, and (2) so much of an order of the same court dated January 8, 2010, as granted theplaintiff's motion to extend the time to serve a copy of the order dated September 17, 2009, uponit, and (3) so much of an order of the same court entered November 9, 2010, as denied its motionfor leave to renew its opposition to that branch of the plaintiff's motion which was, in effect, forsummary judgment on the complaint insofar as asserted against it.
Ordered that the appeal from the order dated January 8, 2010, is dismissed as abandoned; andit is further,
Ordered that the order dated September 17, 2009, and the order entered November 9, 2010,are affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff established its prima facie entitlement to judgment as a matter of law against thedefendant 500 Sterling Realty Corp. (hereinafter 500 Sterling) by submitting proof of theexistence of the mortgage and note made by and executed on behalf of 500 Sterling, certainforbearance agreements, and the default of 500 Sterling (see HSBC Bank USA, NA v Schwartz, 88 AD3d 961 [2011]; Valley Natl. Bank v Deutsch, 88 AD3d691 [2011]; Inland Mtge. CapitalCorp. v Realty Equities NM, LLC, 71 AD3d 1089 [2010]; JP Morgan Chase Bank, N.A. vAgnello, 62 AD3d 662, 663 [2009]). In opposition, 500 Sterling failed to raise a triableissue of fact (see Freedman v Chemical Constr. Corp., 43 NY2d 260, 264 [1977]; Hellas Fos, Inc. v Russo, 84 AD3d1166 [2011]; Phillips v IsaiahOwens Funeral Serv., Inc., 69 AD3d 822 [2010]). Contrary to 500 Sterling's contention,an award of summary judgment [*2]was not premature, as 500Sterling failed to demonstrate that further discovery would lead to additional relevant evidence(see CPLR 3212 [f]; McFadyenConsulting Group, Inc. v Puritan's Pride, Inc., 87 AD3d 620, 621 [2011]; Dombrowski v Metropolitan Prop. & Cas.Ins. Co., 77 AD3d 608 [2010]; Shectman v Wilson, 68 AD3d 848, 850 [2009]; JP MorganChase Bank, N.A. v Agnello, 62 AD3d at 663). Accordingly, the Supreme Court properlygranted that branch of the plaintiff's motion which was, in effect, for summary judgment on thecomplaint insofar as asserted against 500 Sterling.
Since 500 Sterling raises no argument in its brief with respect to its appeal from the orderdated January 8, 2010, the appeal from that order must be dismissed as abandoned (see Lutwin v Perelman, 76 AD3d958, 960 [2010]; Chu v Pan, 72AD3d 866 [2010]; Cambry vLincoln Gardens, 50 AD3d 1081, 1084 [2008]).
500 Sterling's contention regarding the acknowledgments of certain signatures on themortgage and related documents is raised improperly for the first time on appeal. 500 Sterling'sremaining contentions concerning its motion for leave to renew its opposition to the plaintiff'smotion for summary judgment on the complaint are without merit. Balkin, J.P., Eng, Hall andSgroi, JJ., concur.