JPMCC 2007-CIBC19 Bronx Apartments v. Fulton

84 A.D.3d 613, 922 N.Y.S.2d 779

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2011
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mary BriganttiHughes, J.), entered November 16, 2010, which, insofar as appealed from as limited by the briefs, denied plaintiffs motion for summary judgment on its foreclosure cause of action against defendants Fordham Fulton LLC and Mark Karasick, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff established prima facie its right to foreclosure by producing the mortgage and the note, which was unpaid, and uncontroverted evidence that defendants had made no payments as of February 1, 2009; defendants failed to raise an issue of fact as to any defense to foreclosure (see Hypo Holdings v Chalasani, 280 AD2d 386 [2001], lv denied 96 NY2d 717 [2001]; Marine Midland Bank v Fillippo, 276 AD2d 601 [2000]). In this regard, defendants “faced an insurmountable obstacle” (see Red Tulip, LLC v Neiva, 44 AD3d 204, 209 [2007], lv dismissed 10 NY3d 741 [2008]). They expressly waived any defense to foreclosure on the mortgage and the note, they agreed in the first and second prenegotiation agreements that they were barred from bringing any claim or raising any defense to foreclosure arising out of the parties’ postdefault communications regarding a potential restructuring of the loan, and they entered into a stipulation of discontinuance of their affirmative defenses with prejudice. Concur — Andrias, J.E, Friedman, Freedman, Richter and Román, JJ.