| Washington Mut. Bank v Schenk |
| 2013 NY Slip Op 08072 [112 AD3d 615] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Washington Mutual Bank, Respondent, v CarolynSchenk, Appellant, et al., Defendants. |
—[*1] Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Carolyn Schenk appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Richmond County(Fusco, J.), dated October 27, 2009, as, in effect, granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againsther and to strike her answer, and (2) from an order of the same court, also dated October27, 2009, which denied her motion, inter alia, for recusal.
Ordered that the first order dated October 27, 2009, is affirmed insofar as appealedfrom; and it is further,
Ordered that the second order dated October 27, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
"In moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its case as a matter of law through the production of the mortgage, the unpaidnote, and evidence of default" (Wells Fargo Bank, N.A. v Webster, 61 AD3d 856, 856[2009] [internal quotation marks omitted]; see Washington Mut. Bank v Valencia, 92 AD3d 774[2012]; Wells Fargo Bank vDas Karla, 71 AD3d 1006 [2010]). Here, the plaintiff bank sustained its initialburden of demonstrating its entitlement to judgment as a matter of law by submittingproof of the existence of the note and the mortgage, and the defendants' default inpayment (see Washington Mut.Bank v Valencia, 92 AD3d 774 [2012]; Wells Fargo Bank v Das Karla, 71 AD3d 1006 [2010];Wells Fargo Bank, N.A. v Webster, 61 AD3d at 856; Mahopac Natl. Bank vBaisley, 244 AD2d 466 [1997]). In response, the defendant Carolyn Schenk failed toraise a triable issue of fact relating to any bona fide defense to foreclosure (seeWashington Mut. Bank v Valencia, 92 AD3d at 774; Wells Fargo Bank v DasKarla, 71 AD3d at 1006; Wells Fargo Bank, N.A. v Webster, 61 AD3d at856). Contrary to Schenk's contention, here, the plaintiff was not obligated to accepttender of less than full repayment as demanded (see EMC Mtge. Corp. v Stewart, 2 AD3d 772, 773 [2003];United Cos. Lending Corp. v Hingos, 283 AD2d 764, 765-766 [2001]; FirstFed. Sav. Bank v Midura, 264 AD2d 407, 407-408 [1999]). Accordingly, theSupreme Court properly, in effect, granted that branch of the plaintiff's motion whichwas for summary judgment on the complaint insofar as asserted against Schenk.
" 'Absent a legal disqualification under Judiciary Law § 14, a court is the solearbiter of the need for recusal, and its decision is a matter of discretion and personalconscience' " (Galanti vKraus, 98 AD3d 559 [2012], quoting Matter of O'Donnell v Goldenberg, 68 AD3d 1000, 1000[2009]; see People v Moreno, 70 NY2d 403, 405-406 [1987]). Here, theSupreme Court providently exercised its discretion in denying that branch of Schenk'smotion which was for recusal, since she did not establish that there was a basis forrecusal pursuant to Judiciary Law § 14, and failed to set forth any proof of bias orprejudice on the part of the Supreme Court Justice (see Burke v Carrion, 101 AD3d 920, 921 [2012];Galanti v Kraus, 98 AD3d at 559; Hayden v Gordon, 91 AD3d 819 [2012]).
Schenk's remaining contentions are either based on matter dehors the record,improperly raised for the first time on appeal, or without merit. Angiolillo, Dickerson,Austin and Hinds-Radix, JJ., concur.