| Zarabi v Movahedian |
| 2016 NY Slip Op 01170 [136 AD3d 895] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| Javid Zarabi, Respondent, v Rima Movahedian,Appellant, et al., Defendants. |
Rubin & Licatesi, P.C., Garden City, NY (Richard H. Rubin and Amy J. Zamirof counsel), for appellant.
Silberzweig & Sznitken, Brooklyn, NY (Neil Sznitken of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Rima Movahedian appeals (1)from a decision of the Supreme Court, Nassau County (Adams, J.), entered January 14,2015, and (2), as limited by her brief, from so much of an order of the same court enteredJanuary 15, 2015, as, upon the decision, granted those branches of the plaintiff's motionwhich were for summary judgment on the complaint insofar as asserted against her andto appoint a referee to compute the amount due to the plaintiff, and denied her crossmotion for summary judgment dismissing the complaint insofar as asserted againsther.
Ordered that the appeal from the decision is dismissed, as no appeal lies from adecision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and itis further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court properly granted those branches of the plaintiff's motion whichwere for summary judgment on the complaint insofar as asserted against the defendantRima Movahedian and to appoint a referee to compute the amount due to the plaintiff. Inorder to establish prima facie entitlement to judgment as a matter of law in a foreclosureaction, a plaintiff must submit the mortgage and unpaid note, along with evidence of thedefault (see Bank of N.Y.Mellon v Aquino, 131 AD3d 1186 [2015]; Washington Mut. Bank v Schenk, 112 AD3d 615 [2013]).Furthermore, where, as here, the plaintiff in a residential foreclosure action alleges in itscomplaint that it has served a RPAPL 1304 notice on the borrowers, the plaintiff must, insupport of a motion for summary judgment, "prove its allegation by tendering sufficientevidence demonstrating the absence of material issues as to its strict compliance withRPAPL 1304" (Aurora LoanServs., LLC v Weisblum, 85 AD3d 95, 106 [2011]; see Bank of N.Y.Mellon v Aquino, 131 AD3d at 1187).
Here, the plaintiff submitted the mortgage and note, and evidence of Movahedian'sdefault. Further, the plaintiff submitted prima facie proof that he strictly complied withthe notice requirement of RPAPL 1304 (see JP Morgan Chase Bank, N.A. v Schott, 130 AD3d 875,876 [2015]). In [*2]opposition, Movahedian failed toraise a triable issue of fact (seeWells Fargo Bank, N.A. v DeSouza, 126 AD3d 965 [2015]). Contrary toMovahedian's contention, she did not raise a triable issue of fact as to whether thedoctrine of unclean hands acted as a bar to this foreclosure action (see Bank of Smithtown v 219 SaggMain, LLC, 107 AD3d 654, 655 [2013]).
Movahedian's remaining contention is not properly before this Court, as it was raisedfor the first time in her reply papers (see Leavy v Merriam, 133 AD3d 636 [2015]; National Loan Invs., L.P. vPiscitello, 21 AD3d 537, 538 [2005]).
Accordingly, the Supreme Court properly granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted againstMovahedian and to appoint a referee to compute the amount due to the plaintiff.Furthermore, as Movahedian failed to establish her prima facie entitlement to judgmentas a matter of law, the court properly denied her cross motion for summary judgmentdismissing the complaint insofar as asserted against her, without regard to the sufficiencyof any opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). Mastro, J.P., Hall, Maltese and LaSalle, JJ., concur.