| Capital One, N.A. v Knollwood Props. II, LLC |
| 2012 NY Slip Op 06057 [98 AD3d 707] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Capital One, N.A., Successor by Merger to North Fork Bank,Respondent, v Knollwood Properties II, LLC, et al., Appellants, et al.,Defendants. |
—[*1] Lazer Aptheker Rosella & Yedid, P.C., Melville, N.Y. (David Lazer, Zachary Murdock, andAmelia Lister-Sobotkin of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Knollwood Properties II, LLC, and JohnP. Pollis II appeal from a judgment of foreclosure and sale of the Supreme Court, DutchessCounty (Pagones, J.), dated January 19, 2011, which, upon, inter alia, an order of the same courtdated July 27, 2010, granting that branch of the plaintiff's motion which was for summaryjudgment on its cause of action for foreclosure, among other things, confirmed a referee's reportand directed the sale of the subject property.
Ordered that the judgment is affirmed, with costs.
"The plaintiff met its initial burden of establishing its entitlement to judgment as a matter oflaw by producing the mortgage, the unpaid note, and documentation evidencing the appellant[s']default in [their] payment obligations" (US Bank N.A. v Eaddy, 79 AD3d 1022, 1022 [2010]; see Ferri v Ferri, 71 AD3d 949[2010]; Countrywide Home Loans, Inc.v Delphonse, 64 AD3d 624, 625 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239,241-242 [2007]). In opposition, the appellants failed to raise a triable issue of fact. The appellantswaived any defense based on the plaintiff's alleged lack of standing because they failed to assertthat defense in their answer or to file a timely pre-answer motion raising that defense (see US Bank N.A. v Eaddy, 79 AD3d1022 [2010]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d at 242).
Contrary to the appellants' contention, under the circumstances of this case, the referee wasnot required to conduct a hearing prior to the issuance of her report to the Supreme Court (seeLBV Props. v Greenport Dev. Co., 188 AD2d 588 [1992]).
The appellants' remaining contentions are without merit. Florio, J.P., Balkin, Hall and Miller,JJ., concur.