| Bank of N.Y. Mellon Trust Co. v McCall |
| 2014 NY Slip Op 02891 [116 AD3d 993] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Bank of New York Mellon Trust Company,Respondent, v Linda L. McCall et al., Appellants, et al.,Defendants. |
—[*1] Leopold & Associates, PLLC, Armonk, N.Y. (Catherine Welker of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Linda L. McCall and Walter J.Gibbs, Jr., as guardian for the personal needs and property management of Linda L.McCall, appeal, as limited by their brief, from so much of an order of the Supreme Court,Queens County (Strauss, J.), dated April 27, 2012, as granted those branches of theplaintiff's motion which were for summary judgment on the complaint insofar as assertedagainst the defendant Linda L. McCall and to strike the counterclaim and affirmativedefense in her answer, and to add Walter J. Gibbs, Jr., as guardian for the personal needsand property management of Linda L. McCall, as a defendant in the action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage. In her answer, thedefendant Linda L. McCall asserted, as her sole affirmative defense, that she wasfraudulently induced into entering into the subject mortgage transaction.
The Supreme Court properly granted that branch of the plaintiff's motion which wasfor summary judgment on the complaint insofar as asserted against McCall. The plaintiffestablished its prima facie entitlement to judgment as a matter of law by submitting themortgage, the underlying note, and evidence of McCall's default, and by demonstratingthat McCall's affirmative defense was without merit (see Countrywide Home Loans, Inc. v Delphonse, 64 AD3d624, 625 [2009]; WellsFargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 244-245 [2007];Lavi v Hamedani, 234 AD2d 428 [1996]). In opposition, McCall failed to raise atriable issue of fact in support of her allegations of fraud. McCall waived her right tochallenge the plaintiff's standing by failing to raise it in her answer or in a pre-answermotion to dismiss (see CPLR 3211 [a] [3]; [e]; Citibank, N.A. v Herrera, 64AD3d 536 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3dat 240).
The appellants' remaining contentions are without merit. Rivera, J.P., Lott, Millerand Hinds-Radix, JJ., concur.