| KeyBank N.A. v Chapman Steamer Collective, LLC |
| 2014 NY Slip Op 03799 [117 AD3d 991] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| KeyBank National Association,Respondent, v Chapman Steamer Collective, LLC, et al.,Appellants. |
Giordano & Stern, LLP, Cornwall-on-Hudson, N.Y. (Bruce M. Stern ofcounsel), for appellants.
Nolan & Heller, LLP, Albany, N.Y. (Madeline H. Kibrick Kauffman andBrendan J. Carosí of counsel), for respondent.
In an action, inter alia, to foreclose a mortgage, the defendants appeal from ajudgment of foreclosure and sale of the Supreme Court, Orange County (Marx, J.),entered October 18, 2012, which, upon an order of the same court dated April 25, 2012,granting those branches of the plaintiff's motion which were for summary judgment onthe first cause of action and dismissing their counterclaim, and denying their crossmotion to compel certain disclosure, is in favor of the plaintiff and against them directinga foreclosure and sale of the subject property.
Ordered that the judgment is affirmed, with costs.
In October 2008, the defendant Mei Y. Wang, the sole member of the defendantChapman Steamer Collective, LLC (hereinafter Chapman), executed and delivered to theplaintiff, KeyBank National Association (hereinafter KeyBank), a line of creditagreement, along with a note secured by a mortgage on certain real property owned byChapman and a personal guaranty. In July 2010, KeyBank commenced this action, interalia, to foreclose the mortgage. The defendants counterclaimed to recover damages,alleging, among other things, that KeyBank, as part of a series of predatory lendingpractices, induced the defendants into mortgaging the subject premises based onunfulfilled promises of access to further development funding. Thereafter, KeyBankmoved, among other things, for summary judgment on the first cause of action toforeclose the mortgage and dismissing the defendants' counterclaim, and the defendantscross-moved to compel certain disclosure. In an order dated April 25, 2012, the SupremeCourt, inter alia, granted those branches of KeyBank's motion which were for summaryjudgment on the first cause of action and dismissing the counterclaim, and denied thedefendants' cross motion. On October 18, 2012, upon the order, the Supreme Courtentered a judgment of foreclosure and sale.
KeyBank demonstrated its prima facie entitlement to judgment as a matter of law onthe first cause of action by submitting, inter alia, the mortgage, the unpaid note, and anaffidavit evidencing Chapman's default (see Independence Bank v Valentine, 113 AD3d 62, 64[2013]; Mishal v FiduciaryHoldings, LLC, 109 AD3d 885 [2013]). KeyBank further demonstrated itsprima facie [*2]entitlement to judgment as a matter oflaw dismissing the counterclaim, which the defendants validly waived under the expressterms of the mortgage and guaranty (see Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d793, 794 [2012]; Petra CRECDO 2007-1, Ltd. v 160 Jamaica Owners, LLC, 73 AD3d 883 [2010]; Quest Commercial, LLC vRovner, 35 AD3d 576 [2006]). In opposition, the defendants failed to raise atriable issue of fact (see Zuckerman v City of New York, 49 NY2d 557[1980]).
Additionally, the defendants failed to demonstrate how further discovery may revealor lead to relevant evidence, or that facts essential to opposing KeyBank's motion werewithin the exclusive knowledge and control of KeyBank (see Suero-Sosa v Cardona, 112AD3d 706 [2013]; Seidmanv Industrial Recycling Props., Inc., 106 AD3d 983 [2013]).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted those branches of KeyBank'smotion which were for summary judgment on the first cause of action to foreclose themortgage and dismissing the defendants' counterclaim, and denied the defendants' crossmotion to compel certain disclosure. Skelos, J.P., Dillon, Maltese and Barros, JJ.,concur.