Sudit v. Roth

98 A.D.3d 1106, 950 N.Y.S.2d 709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 2012
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Sara Roth, also known as Chaya Roth, and Moshe Roth appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated April 14, 2011, as granted that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by producing a so-ordered stipulation setting forth the appellants’ obligation arising from certain underlying mortgages and agreements, and proof of the appellants’ default (see Zanfini v Chandler, 79 AD3d 1031, 1032 [2010]). In opposition, the appellants failed to raise a triable issue of fact. Contrary to the appellants’ contention, the stipulation did not constitute a novation, as it did not extinguish the appellants’ prior obligations (see Rockwood v Vicarious Visions, Inc., 44 AD3d 1229, 1230 [2007]; Albano v Alba Carting Co., 251 AD2d 273 [1998]).

The appellants’ remaining contention set forth in their reply brief is raised for the first time on appeal and, thus, is not properly before this Court (see Charles v Broad St. Dev., LLC, 95 AD3d 814 [2012]; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 747 [2011]).

Accordingly, the Supreme Court properly granted that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against the appellants. Rivera, J.E, Eng, Lott and Miller, JJ., concur.