| Mendel Group, Inc. v Prince |
| 2014 NY Slip Op 00970 [114 AD3d 732] |
| February 13, 2014 |
| Appellate Division, Second Department |
| Mendel Group, Inc., Respondent, v Zakiya Prince,Appellant. |
—[*1] Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Ronald P. Labeckof counsel), for respondent.
In an action to foreclose a mortgage, the defendant appeals, as limited by her brief,from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), datedMarch 22, 2012, as granted those branches of the plaintiff's motion which were forsummary judgment on the complaint and to strike the affirmative defenses in her answer.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2008, the appellant and nonparty Jeffrey Prince borrowed $1.3 million from theplaintiff and, as security for the note, gave a mortgage covering five parcels of realproperty in Brooklyn. Upon a default in the payment of the note, the plaintiff commencedan action against the appellant and Jeffrey Prince to foreclose the mortgage. After thataction was discontinued insofar as asserted against the appellant without prejudice, theplaintiff commenced the instant action against the appellant alone. After issue wasjoined, the plaintiff moved, inter alia, for summary judgment on the complaint and tostrike the affirmative defenses in the appellant's answer. The appellant opposed themotion and cross-moved for summary judgment dismissing the complaint, arguing thatshe resided at one of the five mortgaged properties and that the plaintiff, among otherthings, failed to comply with the pleading requirements of RPAPL 1302 and the noticeprovisions contained in RPAPL 1303 and 1304, and violated the disclosure requirementsof the Truth in Lending Act (15 USC § 1601 et seq.; hereinafter TILA).The Supreme Court granted the plaintiff's motion and denied the appellant's crossmotion, finding that the subject loan did not satisfy the statutory criteria of a "home loan"(RPAPL 1304 [5] [a]), and was instead a commercial or business loan, such that thestatutory provisions and TILA were inapplicable. The appellant appeals from so much ofthe order as granted those branches of the plaintiff's motion which were for summaryjudgment on the complaint and to strike the affirmative defenses in her answer.
The plaintiff established its prima facie entitlement to judgment as a matter of law byproducing the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co.v Whalen, 107 AD3d 931 [2013]; Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d793 [2012]; Charter One Bank v Houston, 300 AD2d 429 [2002]), and bydemonstrating that the affirmative [*2]defenses werewithout merit (see Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d at932-933; Deutsche Bank Natl.Trust Co. v Spanos, 102 AD3d 909, 910 [2013]; RPAPL 1304 [5] [a]; Vita v New York Waste Servs.,LLC, 34 AD3d 559 [2006]). Accordingly, the burden then shifted to theappellant to lay bare her proof in opposition to the plaintiff's prima facie showing (seeZuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals vAssociated Fur Mfrs., 46 NY2d 1065 [1979]). Even when viewed in the light mostfavorable to the appellant, her submissions were insufficient to raise a triable issue of fact(see Cochran Inv. Co., Inc. vJackson, 38 AD3d 704 [2007]; Charter One Bank v Houston, 300 AD2dat 430). Furthermore, the Supreme Court properly determined that RPAPL 1302, 1303and 1304, the statutes governing pleading and notice requirements, and the disclosurerequirements of TILA, were inapplicable to the instant action (see Horizons Invs. Corp. vBrecevich, 104 AD3d 475 [2013]; Pritchard v Curtis, 101 AD3d 1502, 1504 n 1 [2012];Mauro v Countrywide Home Loans, Inc., 727 F Supp 2d 145, 155 [ED NY2010]). Accordingly, the Supreme Court properly granted those branches of theplaintiff's motion which were for summary judgment on the complaint and to strike theaffirmative defenses in the appellant's answer. Skelos, J.P., Dillon, Hall and Roman, JJ.,concur.