| New York Commercial Bank v J. Realty F Rockaway,Ltd. |
| 2013 NY Slip Op 05519 [108 AD3d 756] |
| July 31, 2013 |
| Appellate Division, Second Department |
| New York Commercial Bank, Appellant, v J.Realty F Rockaway, Ltd., et al., Respondents. |
—[*1] Warren S. Hecht, Forest Hills, N.Y., for respondents J. Realty F Rockaway, Ltd., J &F Rockaway Tavern, Ltd., and Gerald Perich.
In an action to recover on a promissory note, commenced by motion for summaryjudgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Bucaria, J.), entered March 22, 2012, whichdenied its motion for summary judgment, and granted the defendants' cross motion toconsolidate the instant action with an action entitled New York Commercial Bank v JRealty F Rockaway, Ltd., pending in the Supreme Court, Queens County, underindex No. 700818/11, and to place venue in Queens County.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion forsummary judgment is granted, and the defendants' cross motion to consolidate the twoactions and to place venue in Queens County is denied.
"To establish prima facie entitlement to judgment as a matter of law with respect to apromissory note, a plaintiff must show the existence of a promissory note, executed bythe defendant, containing an unequivocal and unconditional obligation to repay, and thefailure by the defendant to pay in accordance with the note's terms" (Lugli v Johnston, 78 AD3d1133, 1135 [2010]; seeSound Shore Med. Ctr. of Westchester v Maloney, 96 AD3d 823 [2012]).
Here, the plaintiff established its prima facie entitlement to judgment as a matter oflaw by submitting the promissory note and loan agreement signed by the defendant, J.Realty F Rockaway, Ltd. (hereinafter J Realty), and guaranteed by the defendants J & FRockaway Tavern, Ltd., Gerald Perich, and Frank Walker, coupled with an affidavitfrom one of the plaintiff's loan recovery officers asserting that J Realty failed to repay theloan in accordance with the terms of the note (see Lugli v Johnston, 78 AD3d at1135). In opposition, the defendants failed to raise a triable issue of fact with respect to abona fide defense (see Sound Shore Med. Ctr. of Westchester v Maloney, 96AD3d at 823; Jin Sheng He vSing Huei Chang, 83 AD3d 788, 789 [2011]). The Supreme Court should nothave, sua sponte, concluded that a triable issue of fact existed as to whether the plaintiffhad complied with RPAPL 1301 (3), since the defendants never raised that affirmativedefense in their opposition papers and, thus, by their failure to do so, waived it (see HSBC Bank USA, N.A. vTaher, 104 AD3d 815 [2013]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d239, [*2]242 [2007]; First Nationwide Bank vBrookhaven Realty Assoc., 223 AD2d 618, 621 [1996]).
There was no basis to consolidate the instant action with a pending foreclosure actionin Queens County because the two actions do not share common questions of law or fact(see CPLR 602 [a]; Perini Corp. v WDF, Inc., 33 AD3d 605, 606 [2006]).
Further, the plaintiff appropriately placed the venue of this action in Nassau Countypursuant to a forum selection clause in the subject promissory note, and the defendantsfailed to show that the forum selection clause was invalid (see KMK Safety Consulting, LLCv Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 651 [2010]). Rivera, J.P.,Skelos, Chambers and Austin, JJ., concur.