| Emigrant Mtge. Co., Inc. v Beckerman |
| 2013 NY Slip Op 02535 [105 AD3d 895] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Emigrant Mortgage Company, Inc.,Respondent, v Ray Beckerman, Appellants, et al.,Defendants. |
—[*1] Knuckles, Komosinski & Elliott, LLP, Elmsford, N.Y. (Jordan J. Manfro of counsel),for respondent.
In an action to foreclose a mortgage, the defendants Ray Beckerman and SusanBeckerman appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Flug, J.), entered July 21, 2010, as granted the plaintiff's motionfor summary judgment on the complaint and denied their cross motion to strike thecomplaint pursuant to CPLR 3126 for failure to comply with certain discovery demandsor, in the alternative, for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted the plaintiff's motion for summary judgment onthe complaint and denied that branch of the appellants' cross motion which was forsummary judgment dismissing the complaint insofar as asserted against them. "[I]n anaction to foreclose a mortgage, a plaintiff establishes its case as a matter of law throughthe production of the mortgage, the unpaid note, and evidence of default" (Argent Mtge. Co., LLC vMentesana, 79 AD3d 1079, 1080 [2010] [internal quotation marks omitted]; see U.S. Bank Natl. Assn. TR U/S6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711 [2008])."The burden then shifts to the defendant to demonstrate 'the existence of a triable issue offact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, oroppressive or unconscionable conduct on the part of the plaintiff' " (U.S. Bank Natl.Assn. TR U/S 6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d at711, quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [1997]; seeNassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183 [1982]).
Here, the plaintiff made a prima facie showing of entitlement to judgment as a matterof law by submitting the mortgage, the unpaid note, and the affidavit of its AssistantTreasurer attesting to the default (see Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079[2010]; U.S. Bank Natl. Assn.TR U/S 6/01/98 [Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711[2008]). In opposition, the appellants failed to raise a triable issue of fact (see Baron Assoc., LLC v GarciaGroup Enters., Inc., 96 AD3d 793 [2012]).[*2]
Contrary to the appellants' contention, theSupreme Court properly denied that branch of their cross motion which was to strike thecomplaint insofar as asserted against them for failure to comply with discovery demands,as there was no court order requiring disclosure (see CPLR 3126 [3]). Mastro,J.P., Rivera, Hall and Miller, JJ., concur.