Waterfall Victoria Master Fund, Ltd v. Dingilian

92 A.D.3d 593, 939 N.Y.2d 40

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 2012
• Status: Published

Opinion

Plaintiff established prima facie its right to foreclosure and to a deficiency judgment against defendant Edward G. Dingilian by producing the mortgage documents underlying the transaction and evidence of nonpayment, which default defendant failed to rebut, as well as the personal guaranty signed by defendant as additional collateral for the mortgage. Defendant failed to raise an issue of fact as to any defense (see Hypo Holdings v Chalasani, 280 AD2d 386 [2001], lv denied 96 NY2d 717 [2001]). Defendant’s argument that an affidavit in support of the motion was based entirely upon inadmissible hearsay and incorrect information is unpreserved, and in any event, it is unavailing. Further, the court properly permitted plaintiff to discontinue the action against the decedent, who had conveyed the mortgaged property prior to his death (see DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857 [2008]).

We have considered defendant’s other arguments and find them unavailing. Concur — Tom, J.P., Friedman, Sweeny, Moskowitz and DeGrasse, JJ.