Opinion
CA 02-00185
October 1, 2002.
Appeal from an order of Supreme Court, Ontario County (Harvey, J.), entered September 13, 2001, which, inter alia, granted plaintiff's motion seeking summary judgment.
SHAPIRO, ROSENBAUM, LIEBSCHUTZ NELSON, LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR DEFENDANT-APPELLANT.
BOYLAN, BROWN, CODE, VIGDOR WILSON, LLP, ROCHESTER (MARK A. COSTELLO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiff's motion in part, reinstating defendant's fourth and fifth affirmative defenses and vacating the third, fourth and fifth ordering paragraphs and as modified the order is affirmed without costs.
Memorandum:
Supreme Court erred in granting in its entirety plaintiff's motion seeking summary judgment in this foreclosure action. Plaintiff failed to submit evidentiary proof in admissible form establishing that it served PB Victor, Inc. (defendant) with a notice of default pursuant to the terms of the subordination agreement and thus failed to meet its initial burden of establishing its entitlement to judgment as a matter of law ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562; cf. Matter of Cruz v. Wing, 276 A.D.2d 307, lv denied 96 N.Y.2d 702; Yong Gon Cha v. Warwick Hotel, 272 A.D.2d 154, 154-155; East Riv. Sav. Bank v. Curtis, 229 A.D.2d 999) . We note that, in the event that it is determined that the notice of default was not properly served, the court must then determine the effect of the failure to serve such notice ( see generally Phoenix Acquisition Corp. v. Campcore, Inc., 81 N.Y.2d 138, 144). We further note that, contrary to defendant's contention, the subordination agreement does not expressly prohibit any amendments to the original note and mortgage without the prior written consent of defendant. In any event, even assuming, arguendo, that any such amendments are prohibited, we conclude that the instant foreclosure action would not be affected thereby. We therefore modify the order by denying plaintiff's motion in part, reinstating defendant's fourth and fifth affirmative defenses and vacating the third, fourth and fifth ordering paragraphs.