Defendant, Demetrios Bekas, appealed, as limited by his brief, from so much of the order of Justice Elliot entered on February 10, 2012, as granted those branches of plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to strike his answer. By order of the Appellant Division, Second Department, the order entered on February 10, 2012, was reversed insofar as appealed from, on the law, and those branches of plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, Demetrios Bekas, and to strike that defendant's answer were denied (Valiotis v Bekas, 106 AD3d 992 [2d Dept 2013]). The Appellate Division determined that plaintiff had established his prima facie entitlement to summary judgment on the complaint insofar as asserted against defendant, Demetrios Bekas, but that in opposition, Demetrios Bekas, raised a triable issue of fact regarding his affirmative defense that he was fraudulently induced into executing the note and mortgage by plaintiff's misrepresentations, upon which Demetrios allegedly relied because of his relationship of trust and confidence with plaintiff (see id. at 993).
Contrary to the defendants' contention, the plaintiff was not required to submit evidence that it mailed a notice of default to them, since the mortgages and note did not obligate the plaintiff to provide the defendants with such notice (seeEmigrant Funding Corp. v. Agard, 121 A.D.3d 935, 936, 995 N.Y.S.2d 154 ). However, in opposition to the plaintiff's prima facie showing, the defendants raised a triable issue of fact as to whether the note and mortgages were procured by fraudulent inducement by submitting an affidavit of John, who averred that the plaintiff's owner, Dean Facatselis, with whom he had a close relationship, represented prior to execution of the note and mortgages that certain mortgage terms would not be enforced (seeValiotis v. Bekas, 106 A.D.3d 992, 965 N.Y.S.2d 369 ). The plaintiff's contention that John "lacks credibility" was not a sufficient basis to disregard his affidavit, since "[t]he function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 201, 97 N.Y.S.3d 286 [internal quotation marks omitted] ).
In August 2010, Valiotis commenced this action to foreclose the mortgage against, among others, Bekas and his wife, alleging that they defaulted in paying the mortgage. On a prior appeal, this Court reversed so much of the Supreme Court's order as granted summary judgment to Valiotis on the complaint insofar as asserted against Bekas, finding that Bekas raised a triable issue of fact regarding his affirmative defense that he was fraudulently induced into executing the note and mortgage (see Valiotis v. Bekas, 106 A.D.3d 992, 965 N.Y.S.2d 369 ). Bekas then commenced a third-party action against Valiotis, his wife Stamatiki Valiotis (hereinafter Stamatiki), Rivercity, LLC, and Top Cove (hereinafter the collectively the Valiotis defendants), asserting numerous claims sounding in fraud and breach of fiduciary duty and seeking to impose a constructive trust on real property to which Stamatiki holds title.
). Here, there are no facts pled, particularly as to Museum Owner, demonstrating a duty to disclose the existence of this "secret agreement" (cf. Valiotis v Bekas, 106 A.D.3d 992, 993 [1st Dept 2013]).
Defendant, Demetrios Bekas, appealed, as limited by his brief, from so much of the order of Justice Elliot entered on February 10, 2012, as granted those branches of plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to strike his answer. By order of the Appellant Division, Second Department, the order entered on February 10, 2012, was reversed insofar as appealed from, on the law, and those branches of plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, Demetrios Bekas, and to strike that defendant's answer were denied (Valiotis v Bekas, 106 AD3d 992 [2d Dept 2013]). The Appellate Division determined that plaintiff had established his prima facie entitlement to summary judgment on the complaint insofar as asserted against defendant, Demetrios Bekas, but that in opposition, Demetrios Bekas, raised a triable issue of fact regarding his affirmative defense that he was fraudulently induced into executing the note and mortgage by plaintiff's misrepresentations, upon which Demetrios allegedly relied because of his relationship of trust and confidence with plaintiff (see id. at 993).
In their cross motion for summary judgment, defendants have failed to produce any competent evidence sufficient to either to show their entitlement to judgment as a matter of law, or raise a triable issue of fact as to any bona fide defense (see Soloman v. Burden, 104 AD3d at 839; Citibank, NA v. Van Brunt Props, LLC, 95 AD3d at 1159; cf. Valiotis v. Bekas, 106 AD3d 992 [2nd Dept 2013]). In any event, the affirmations submitted by defendant Mary Ellen Sach, Esq. in opposition to plaintiff's motion and in support of defendants' cross motion are of no probative value, since she is a party to the action and therefore barred from proceeding by way of an affirmation (see CPLR 2106; Jackson v. Bader, 74 AD2d 621, 622 [2nd Dept 1980]).