Opinion
2014-04-30
FAIRMONT CAPITAL, LLC, respondent, v. Salomao LANIADO, appellant, et al., defendants.
Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), for appellant. Suslovich & Klein, LLP, Brooklyn, N.Y. (Mark M. Kranz of counsel), for respondent.
Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), for appellant. Suslovich & Klein, LLP, Brooklyn, N.Y. (Mark M. Kranz of counsel), for respondent.
THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to foreclose a mortgage, the defendant Salomao Laniado appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated June 13, 2012, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and for the appointment of a referee to compute the amount of money that is due to the plaintiff, and, in effect, to strike the affirmative defenses in his answer.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellant and for the appointment of a referee to compute the amount of money that is due to it, and, in effect, to strike the affirmative defenses in the appellant's answer. The plaintiff established its prima facie entitlement to judgment as a matter of law by producing a mortgage, an unpaid note, and evidence of default ( see Mendel Group, Inc. v. Prince, 114 A.D.3d 732, 980 N.Y.S.2d 519;Independence Bank v. Valentine, 113 A.D.3d 62, 64, 976 N.Y.S.2d 504;Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 969 N.Y.S.2d 82), and by demonstrating that the affirmative defenses were without merit ( see Mendel Group, Inc. v. Prince, 114 A.D.3d 732, 980 N.Y.S.2d 519;Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d at 932–933, 969 N.Y.S.2d 82). In opposition, the appellant failed to raise a triable issue of fact. The notice requirements of RPAPL 1304 were inapplicable to this action, since the subject loan did not satisfy the statutory definition of a “home loan,” as that term was defined when this action was commenced ( see L. 2008, ch. 472, § 2; cf. Mendel Group, Inc. v. Prince, 114 A.D.3d 732, 980 N.Y.S.2d 519).
The parties' remaining contentions either need not be reached in light of our determination, are without merit, or are not properly before this Court.