| American Airlines Fed. Credit Union v Mohamed |
| 2014 NY Slip Op 03788 [117 AD3d 974] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| American Airlines Federal Credit Union,Respondent, v Sabina Mohamed et al., Defendants, and Ronald J. Narayanan etal., Appellants. |
City Bar Justice Center, New York, N.Y. (Lynn Armentrout of counsel), forappellants.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino ofcounsel), for respondent.
Legal Services NYC, New York, N.Y. (Jacob Inwald of counsel), Queens LegalServices, Jamaica, N.Y. (Franklin Romeo of counsel), and Staten Island Legal Services,Staten Island, N.Y. (Joseph Sanders of counsel), amici curiae pro se and for amici curiaeSouth Brooklyn Legal Services, Legal Services NYC-Bronx, Bedford StuyvesantCommunity Legal Services, JASA/Legal Services for Elderly in Queens, Western NewYork Law Center, Nassau/Suffolk Law Services Committee, Inc., MFY Legal Services,Inc., Empire Justice Center, Hiscock Legal Aid Society, and Legal Aid Society (one brieffiled).
In an action to foreclose a mortgage, the defendants Ronald J. Narayanan and JamelaNarayanan appeal, as limited by their brief, from stated portions of an order of theSupreme Court, Queens County (Butler, J.), entered October 10, 2012, which, upon adecision of the same court entered July 13, 2012, inter alia, granted those branches of theplaintiff's motion which were for summary judgment in its favor on the complaint insofaras asserted against the defendant Ronald J. Narayanan and, upon her default in the action,the defendant Jamela Narayanan, and for the appointment of a referee to ascertain andcompute the amount due to the plaintiff.
Ordered that the appeal by the defendant Jamela Narayanan is dismissed, withoutcosts or disbursements, as no appeal lies from an order made upon the default of theappealing party (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed, with costs payable to theplaintiff by the defendants Ronald J. Narayanan and Jamela Narayanan.
The plaintiff met its initial burden of establishing its entitlement to judgment as amatter of law by producing the mortgage, the unpaid note, and an affidavit from itsforeclosure specialist evidencing the default in the payment obligations of the defendantsSabina Mohamed and [*2]Ronald J. Narayanan (see Baron Assoc., LLC v GarciaGroup Enters., Inc., 96 AD3d 793, 793 [2012]; GRP Loan, LLC v Taylor, 95AD3d 1172, 1173 [2012]; Citibank, N.A. v Van Brunt Props., LLC, 95 AD3d 1158,1159 [2012]). In response, Ronald J. Narayanan, the only defendant to submit an answerin this action (hereafter the opposing defendant), failed to raise a triable issue of factrelating to any bona fide defense to foreclosure (see Bank of Smithtown v 219 Sagg Main, LLC, 107 AD3d654, 655 [2013]). The affidavit submitted by defense expert Rick Rogers inopposition to the motion, purporting to demonstrate that a loan modification was moreeconomically advantageous for the plaintiff as opposed to foreclosure, did not raise atriable issue of fact as to whether the plaintiff acted in good faith during settlementconferences held in this action pursuant to CPLR 3408, and has no bearing on the lack ofhardship ground upon which the plaintiff declined to modify the subject mortgageloan.
Accordingly, the Supreme Court correctly granted that branch of the plaintiff'smotion which was for summary judgment in its favor on the complaint insofar as assertedagainst the opposing defendant. Rivera, J.P., Austin, Roman and Hinds-Radix, JJ.,concur.