Wells Fargo Bank, Nat'l Ass'n. v. DeSouza

Full title: Wells Fargo Bank, National Association, respondent, v. Garvin DeSouza…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Mar 25, 2015

2015 N.Y. Slip Op. 2470 (N.Y. App. Div. 2015)

Opinion

2014-04209 Index No. 503174/12

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.

WILLIAM F. MASTRO, J.P.

CHERYL E. CHAMBERS

LEONARD B. AUSTIN

ROBERT J. MILLER, JJ.

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.

DECISION & ORDER

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 AD3d 375; Peak Fin. Partners, Inc. v Brook, 119 AD3d 539; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895). 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 AD3d 62; Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793). 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 NY2d 320).

The appellant's remaining contentions are improperly raised for the first time on appeal.

MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court