Opinion
2003-01188
Argued September 30, 2003.
October 27, 2003.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), entered January 24, 2003, as denied that branch of its motion which was for summary judgment against the defendant Alpha and Omega, Inc.
Zavatsky, Mendelsohn, Gross, Savino Levy, LLP, Syosset, N.Y. (Joseph Savino of counsel), and Swidler Berlin Shereff Friedman, LLP, New York, N.Y. (Todd B. Marcus of counsel), for appellant.
Storch Amini Munves, P.C., New York, N.Y. (Steven G. Storch of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment against the defendant Alpha and Omega, Inc. is granted.
The affirmative defense of the defendant Alpha and Omega, Inc. (hereinafter the defendant), that the plaintiff was not a holder in due course is barred by the doctrine of collateral estoppel ( see Pinnacle Consultants v. Leucadia Natl. Corp., 94 N.Y.2d 426, 431-432). Moreover, the plaintiff submitted sufficient evidence to demonstrate its prima facie entitlement to judgment as a matter of law ( see UCC 3-302; First Int. Bank of Israel v. Blankstein Son, 59 N.Y.2d 436, 441; First Nat. Bank of Long Is. v. Rob-Glen Enterprises, 101 A.D.2d 848). In opposition, the defendant failed to submit sufficient evidence to raise a question of fact as to whether the plaintiff had actual knowledge of any defense against or claim to the note and mortgage that it purchased ( see UCC 3-304; Hartford Acc. Indem. Co. v. American Express Co., 74 N.Y.2d 153, 162-163; Chemical Bank of Rochester v. Haskell, 51 N.Y.2d 85, 92-93). The defendant also failed to demonstrate how further discovery might yield material facts which would warrant the denial of summary judgment (see Vidal v. Tsitsiashvilli, 297 A.D.2d 638; Morissaint v. Raemar Corp., 271 A.D.2d 586, 587).
In light of our determination, it is unnecessary to reach the plaintiff's remaining contention.
RITTER, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.