| A/SL DFV, LLC v C.A.R.S. Constr., LLC |
| 2018 NY Slip Op 03496 [161 AD3d 921] |
| May 16, 2018 |
| Appellate Division, Second Department |
[*1](May 16, 2018)
| A/SL DFV, LLC, Respondent, v C.A.R.S.Construction, LLC, et al., Appellants. |
Barry V. Pittman, Bay Shore, NY, for appellants.
Polsinelli P.C., New York, NY (Jason A. Nagi of counsel), for respondent.
In an action to foreclose a mortgage, the defendants appeal from an order of the SupremeCourt, Nassau County (R. Bruce Cozzens, Jr., J.), dated January 21, 2016. The order, insofar asappealed from, granted the plaintiff's motion for summary judgment on the complaint anddismissing the defendants' counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
In May 2008, the defendant C.A.R.S. Construction, LLC (hereinafter CARS), obtained aconstruction loan from Hudson Valley Bank (hereinafter the bank). The construction loan wassecured by a mortgage on certain real property. The loan was further guaranteed by thedefendants Romaz Properties, Ltd., Robert Romeo, and Carmella Maria Holland. Allegedly, thedefendants defaulted on the mortgage by failing to pay the full sum due upon the maturity of thenote.
The bank commenced this action to foreclose the mortgage. The defendants assertedcounterclaims alleging that the bank breached the construction loan agreement by unjustifiablyrefusing to advance to CARS all of the proceeds of the loan. Meanwhile, the bank assigned theloan to VFC Partners 19, LLC (hereinafter VFC), and VFC was substituted as the plaintiff. VFCmoved, inter alia, for summary judgment on the complaint and dismissing the defendants'counterclaims. The defendants opposed the motion. The Supreme Court granted VFC's motion,and the defendants appeal. In November 2016, the subject note and mortgage were sold andassigned to A/SL DFV, LLC. In May 2017, the Supreme Court issued an order substituting A/SLDFV, LLC, as the plaintiff and amending the caption accordingly. By decision and order onmotion dated October 3, 2017, this Court, inter alia, substituted A/SL DFV, LLC, for VFC as therespondent on the appeal.
We agree with the Supreme Court's determination to grant VFC's motion for summaryjudgment on the complaint and dismissing the defendants' counterclaims. In a mortgageforeclosure action, the plaintiff establishes a prima facie entitlement to judgment as a matter oflaw by submitting the mortgage, the unpaid note, and evidence of default (see North Am. Sav. Bank, FSB vEsposito-Como, 141 AD3d 706, 708 [2016]; Pennymac Holdings, LLC v Tomanelli, 139 AD3d 688, 689 [2016];[*2]Wells Fargo Bank, N.A. v Hallock, 138 AD3d 735, 735[2016]; Bayview Loan Servicing, LLC v254 Church St., LLC, 129 AD3d 650, 650 [2015]; Sperry Assoc. Fed. Credit Union v Alexander, 116 AD3d 759, 759[2014]; Wachovia Bank, N.A. vCarcano, 106 AD3d 724, 725 [2013]). Here, VFC established its prima facie entitlementto judgment as a matter of law by submitting a copy of the mortgage, the unpaid note, andevidence of the default (see North Am. Sav. Bank, FSB v Esposito-Como, 141 AD3d at708; Pennymac Holdings, LLC v Tomanelli, 139 AD3d at 689; Wachovia Bank, N.A.v Carcano, 106 AD3d at 725).
In opposition, the defendants failed to demonstrate the existence of a triable issue of fact asto a bona fide defense (see North Am. Sav. Bank, FSB v Esposito-Como, 141 AD3d at708; Bayview Loan Servicing, LLC v 254 Church St., LLC, 129 AD3d at 651; SperryAssoc. Fed. Credit Union v Alexander, 116 AD3d at 759; Wells Fargo Bank, N.A. v Webster, 61AD3d 856, 856 [2009]). The defendants' contention that the bank unreasonably withheldproceeds of the loan from CARS is refuted by evidence that CARS made representations to thebank that it would not be able to satisfy all of its obligations under the loan. Under the terms ofthe construction loan agreement, these representations provided the bank with a valid basis forwithholding proceeds of the loan. Scheinkman, P.J., Leventhal, Barros and Brathwaite Nelson,JJ., concur.