| Schwyter v DeNoble |
| 2016 NY Slip Op 05914 [142 AD3d 699] |
| August 31, 2016 |
| Appellate Division, Second Department |
[*1]
| Herman Schwyter et al., Respondents, v JohnDeNoble, Jr, Appellant, et al., Defendants. |
John B. Gulino, P.C., Staten Island, NY (Robert Farrell, Jr., of counsel), forappellant.
Hall & Hall LLP, Staten Island, NY (John G. Hall of counsel), forrespondents.
In an action to foreclose a mortgage, the defendant John DeNoble, Jr., appeals, aslimited by his brief, from so much of an order of the Supreme Court, Richmond County(Green, J.), dated March 31, 2015, as granted those branches of the motion of WarsoweAcquisition Corporation, doing business as Warsowe Financial Corp., which were forsummary judgment on the complaint insofar as asserted against him and to substituteHerman Schwyter and Margaritha Schwyter as the plaintiffs.
Ordered that the order is affirmed insofar as appealed from, with costs.
In this mortgage foreclosure action, the Supreme Court properly granted that branchof the motion of Warsowe Acquisition Corporation, doing business as WarsoweFinancial Corp. (hereinafter Warsowe), which was for summary judgment on thecomplaint insofar as asserted against the defendant John DeNoble, Jr. Warsowe made aprima facie showing of entitlement to judgment as a matter of law by submitting themortgage, the unpaid note, and evidence of DeNoble's default (see Emigrant Mtge. Co., Inc. vBeckerman, 105 AD3d 895, 895 [2013]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079[2010]). In opposition, DeNoble failed to raise a triable issue of fact as to a bona fidedefense to the action (see Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d at895; Baron Assoc., LLC vGarcia Group Enters., Inc., 96 AD3d 793 [2012]). Specifically, DeNoble failedto raise a triable issue of fact as to whether the interest on the subject loan was usurious(see Abir v Malky, Inc., 59AD3d 646 [2009]; cf.Oliveto Holdings, Inc. v Rattenni, 110 AD3d 969 [2013]).
The Supreme Court providently exercised its discretion in granting that branch ofWarsowe's motion which was to substitute Herman Schwyter and Margaritha Schwyteras the plaintiffs (see CPLR 1018; Mortgage Elec. Registration Sys., Inc. v Holmes, 131 AD3d680 [2015]; Maspeth Fed.Sav. & Loan Assn. v Simon-Erdan, 67 AD3d 750, 751 [2009]). Warsoweestablished that the mortgage was assigned to the Schwyters after this action had beencommenced.
DeNoble's contention that the Schwyters lack standing to be substituted as theplaintiffs because there was insufficient evidence that the Schwyters possessed the note isimproperly [*2]raised for the first time on appeal (see Retained Realty, Inc. vSyed, 137 AD3d 1099 [2016]; HSBC Bank USA, N.A. v Calderon, 115 AD3d 708[2014]). Chambers, J.P., Dickerson, Duffy and LaSalle, JJ., concur.