Opinion
10-19-2016
CITIMORTGAGE, INC., respondent, v. Theresa GUILLERMO, appellant, et al., defendants.
Richard K. Hershman, PLLC, New York, NY, for appellant. Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
Richard K. Hershman, PLLC, New York, NY, for appellant.
Akerman, LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE and BETSY BARROS, JJ.
In an action to foreclose a mortgage, the defendant Theresa Guillermo appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Connolly, J.), dated June 3, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against her.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In October 2006, Theresa Guillermo (hereinafter the defendant) executed a note and mortgage in the principal sum of $448,000 in favor of the plaintiff, CitiMortgage, Inc. In August 2009, the defendant allegedly defaulted on her payment obligations under the note and mortgage, and the plaintiff commenced the instant mortgage foreclosure action in June 2010. Issue was joined, and the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. The Supreme Court granted the motion.
In residential mortgage foreclosure actions, as here, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of the default (see RBS Citizens, N.A. v. Galperin, 135 A.D.3d 735, 736, 23 N.Y.S.3d 307 ; Midfirst Bank v. Agho, 121 A.D.3d 343, 347, 991 N.Y.S.2d 623 ; W & H Equities LLC v. Odums, 113 A.D.3d 840, 841, 978 N.Y.S.2d 910 ; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902 ; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 877 N.Y.S.2d 200 ). The burden then shifts to the defendant to raise a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (see Flushing Sav. Bank, FSB v. Sharp Realty, LLC, 136 A.D.3d 652, 652, 23 N.Y.S.3d 908 ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548 ; Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345 ).
Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d at 895, 964 N.Y.S.2d 548 ). In opposition, the defendant failed to raise a triable issue of fact. Contrary to her contention, she did not raise a triable issue of fact as to whether the doctrine of unclean hands barred this foreclosure action (see Zarabi v. Movahedian, 136 A.D.3d 895, 896, 26 N.Y.S.3d 153 ; Bank of Smithtown v. 219 Sagg Main, LLC, 107 A.D.3d 654, 655, 968 N.Y.S.2d 95 ). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant.Moreover, contrary to the defendant's contention, the Supreme Court properly found that the motion was not premature. “A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Buto v. Town of Smithtown, 121 A.D.3d 829, 830, 994 N.Y.S.2d 366 [internal quotation marks omitted]; see Rodriguez v. Gutierrez, 138 A.D.3d 964, 968, 31 N.Y.S.3d 97 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559 ). The mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion (see Chou v. Ocean Ambulette Serv., Inc., 131 A.D.3d 1091, 1093, 16 N.Y.S.3d 593 ; Buchinger v. Jazz Leasing Corp., 95 A.D.3d 1053, 1054, 944 N.Y.S.2d 316 ). Here, the defendant failed to make the requisite showing (see Vikram Constr., Inc. v. Everest Natl. Ins. Co., 139 A.D.3d 720, 721, 32 N.Y.S.3d 203 ).