Opinion
CA 18–01110 1413
02-01-2019
The BANK OF NEW YORK MELLON, Formerly Known as the Bank of New York as Successor Trustee for JPMorgan Chase Bank, N.A., as Trustee for the Benefit of the Certificate Holders of Equity One ABS, Inc. Mortgage Pass-Through Certificates Series 2004-3, Plaintiff-Respondent, v. James C. SIMMONS, Defendant-Appellant, People of the State of New York, et al., Defendants.
THE LAW OFFICE OF JAMES C. SIMMONS, EAST AMHERST (JAMES C. SIMMONS OF COUNSEL), FOR DEFENDANT–APPELLANT. GREENBERG TRAURIG, LLP, NEW YORK CITY (LEAH N. JACOB OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
THE LAW OFFICE OF JAMES C. SIMMONS, EAST AMHERST (JAMES C. SIMMONS OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREENBERG TRAURIG, LLP, NEW YORK CITY (LEAH N. JACOB OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this residential foreclosure action, we reject the contention of James C. Simmons (defendant) that Supreme Court erred in granting plaintiff's motion for, inter alia, summary judgment on the complaint and an order of reference and in denying defendant's pro se cross motion for, inter alia, summary judgment dismissing the complaint. "It is well settled that a plaintiff moving for summary judgment in a mortgage foreclosure action establishes its prima facie case by submitting a copy of the mortgage, the unpaid note and evidence of default" ( Bank of N.Y. Mellon v. Anderson, 151 A.D.3d 1926, 1927, 58 N.Y.S.3d 809 [4th Dept. 2017] ; see Green Planet Servicing, LLC v. Martin, 141 A.D.3d 892, 893, 34 N.Y.S.3d 911 [3d Dept. 2016] ; Wells Fargo Bank, N.A. v. Deering, 134 A.D.3d 1468, 1469, 23 N.Y.S.3d 767 [4th Dept. 2015] ). Here, plaintiff met its initial burden by submitting, among other things, a copy of the mortgage, the unpaid note, and an affidavit of indebtedness demonstrating that defendant defaulted on his monthly installments by failing to tender payment within 30 days of the due date (see generally Bank of N.Y. Mellon, 151 A.D.3d at 1927, 58 N.Y.S.3d 809 ). Even "[v]iewing, as we must, the evidence of the nonmoving party as true and granting [him] every favorable inference" ( Hartford Ins. Co. v. General Acc. Group Ins. Co. , 177 A.D.2d 1046, 1047, 578 N.Y.S.2d 59 [4th Dept. 1991] ), we conclude that, in opposition to the motion, defendant failed "to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action" ( Lawler v. KST Holdings Corp., 115 A.D.3d 1196, 1198–1199, 982 N.Y.S.2d 617 [4th Dept. 2014], lv dismissed 24 N.Y.3d 989, 995 N.Y.S.2d 706, 20 N.E.3d 652 [2014] [internal quotation marks omitted]; see JPMorgan Chase Bank, N.A. v Bussone, 136 A.D.3d 1342, 1342, 24 N.Y.S.3d 560 [4th Dept. 2016] ).
We have reviewed defendant's remaining contentions and conclude that they lack merit.