Opinion
2013-05-9
2010–1 SFG VENTURE LLC, Plaintiff–Appellant, v. 34–10 DEVELOPMENT, LLC, et al., Defendants–Respondents, NCC Funding SP, LLC, et al. Defendants.
Greenberg Traurig, LLP, New York (Steven Sinatra of counsel), for appellant. Richard L. Yellen & Associates, LLP, New York (Richard L. Yellen of counsel), for respondents.
Greenberg Traurig, LLP, New York (Steven Sinatra of counsel), for appellant. Richard L. Yellen & Associates, LLP, New York (Richard L. Yellen of counsel), for respondents.
Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered on or about August 5, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment seeking judgment of foreclosure and sale as against defendants-respondents, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
In this mortgage foreclosure action, plaintiff bank established a prima facie case of its entitlement to summary judgment by producing the mortgage, note, and guaranty executed by defendants-respondents, and evidence of defendants' default on their obligations thereunder ( see Waterfall Victoria Master Fund, Ltd. v. Dingilian, 92 A.D.3d 593, 939 N.Y.S.2d 40 [1st Dept. 2012];Chemical Bank v. Broadway 55–56th St. Assoc., 220 A.D.2d 308, 632 N.Y.S.2d 553 [1st Dept. 1995] ). Defendants failed to rebut that evidence and the record shows that they waived the affirmative defenses. Pursuant to choice-of-law provisions in some of the mortgage documents, both New York law and Georgia law govern the affirmative defenses on which defendants rely in seeking to raise an issue of fact. Under either state's law, defendants expressly waived such defenses through various provisions in the mortgage documents ( see Citibank v. Plapinger, 66 N.Y.2d 90, 93, 495 N.Y.S.2d 309, 485 N.E.2d 974 [1985];Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept. 2007],lv. dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008],lv. denied 13 N.Y.3d 709, 890 N.Y.S.2d 446, 918 N.E.2d 961 [2009];Casgar v. Citizens S. Natl. Bank, 188 Ga.App. 234, 236, 372 S.E.2d 815 [1988] ).
*864We have reviewed defendants' remaining contentions and find them unavailing.