Opinion
2014-04209
03-25-2015
WELLS FARGO BANK, NATIONAL ASSOCIATION, respondent, v. Garvin DeSOUZA, appellant, et al., defendants.
Bryer & David, New York, N.Y. (Marvin M. David of counsel), for appellant. McNamee, Lochner, Titus & Williams, P.C., Albany, N.Y. (Kenneth L. Gellhaus of counsel), for respondent.
Bryer & David, New York, N.Y. (Marvin M. David of counsel), for appellant.
McNamee, Lochner, Titus & Williams, P.C., Albany, N.Y. (Kenneth L. Gellhaus of counsel), for respondent.
Opinion
In an action to foreclose a mortgage, the defendant Garvin DeSouza appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated March 10, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to appoint a referee.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the appellant's contention, the plaintiff established its prima facie entitlement to judgment as a matter of law in this foreclosure action by producing the mortgage, the unpaid note, and evidence of the appellant's default in payment (see One W. Bank, FSB v. DiPilato, 124 A.D.3d 735, 998 N.Y.S.2d 668 ; Peak Fin. Partners, Inc. v. Brook, 119 A.D.3d 539, 987 N.Y.S.2d 916 ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 964 N.Y.S.2d 548 ). In opposition, the appellant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to a bona fide defense (see Independence Bank v. Valentine, 113 A.D.3d 62, 976 N.Y.S.2d 504 ; Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 946 N.Y.S.2d 611 ). Accordingly, 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 to appoint a referee (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
The appellant's remaining contentions are improperly raised for the first time on appeal.
MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.