Opinion
2015-06-03
BAYVIEW LOAN SERVICING, LLC, respondent, v. 254 CHURCH STREET, LLC, et al., appellants, et al., defendants.
Leventhal, J.P., Chambers, Roman and Hinds-Radix, JJ., concur.
Joseph R. Pisani, West Park, N.Y. (Richard C. Ebeling of counsel), for appellants. Hiscock & Barclay, LLP, Syracuse, N.Y. (John M. Nichols and Jennifer M.S. Byrne of counsel), for respondent.
In an action to foreclose a mortgage, the defendants 254 Church Street, LLC, and James R. Koltz appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated December 24, 2012, which granted the plaintiff's motion for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs.
“In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default” (Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 856, 877 N.Y.S.2d 200 [internal quotation marks omitted] ). Here, the plaintiff sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by producing the note and the mortgage, and submitting evidence of default in payment ( see Wells Fargo Bank, N.A. v. DeSouza, 126 A.D.3d 965, 3 N.Y.S.3d 619; One W. Bank, FSB v. DiPilato, 124 A.D.3d 735, 998 N.Y.S.2d 668). In opposition, the defendants 254 Church Street, LLC, and James R. Koltz failed to raise a triable issue of fact relating to any bona fide defense to foreclosure ( see Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 793–794, 946 N.Y.S.2d 611). Furthermore, the Supreme Court properly determined that RPAPL 1303 and 1304, statutes governing pleading and notice requirements in connection with certain mortgages, were inapplicable to the instant action ( see Mendel Group, Inc. v. Prince, 114 A.D.3d 732, 733, 980 N.Y.S.2d 519; Horizons Invs. Corp. v. Brecevich, 104 A.D.3d 475, 961 N.Y.S.2d 112; cf. Independence Bank v. Valentine, 113 A.D.3d 62, 66, 976 N.Y.S.2d 504). Accordingly, summary judgment on the complaint was properly awarded to the plaintiff.