Opinion
5101 5101A Index 850313/14
11-30-2017
WILMINGTON TRUST, etc., Plaintiff–Respondent, v. Ragobar SUKHU also known as Ragobar D. Sukhu, Defendant–Appellant, Bank of America, N.A., et al., Defendants.
Zimmerman Law, P.C., Huntington Station (Antonio Marano of counsel), for appellant. Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Zimmerman Law, P.C., Huntington Station (Antonio Marano of counsel), for appellant. Akerman LLP, New York (Jordan M. Smith of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Kahn, Moulton, JJ.
Orders, Supreme Court, New York County (Debra A. James, J.), entered May 20, 2016, which, respectively, granted plaintiff summary judgment on its mortgage foreclosure claim, and denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff established its prima facie entitlement to mortgage foreclosure as a matter of law, by producing the note, mortgage, assignment, and evidence of defendant's nonpayment, and defendant failed to raise a triable issue as to a defense ( Wall St. Mtge. Bankers v. Gonzalez, 126 A.D.3d 602, 3 N.Y.S.3d 596 [1st Dept. 2015] ; Horizons Invs. Corp. v. Brecevich, 104 A.D.3d 475, 961 N.Y.S.2d 112 [1st Dept.2013] ).
Defendant waived his right to assert a defense based on plaintiff's alleged failure to provide 30 days' written notice of default, because he failed to assert it as an affirmative defense in his answer and failed to timely raise it in response to plaintiff's motion for summary judgment ( Signature Bank v. Epstein, 95 A.D.3d 1199, 1200–1201, 945 N.Y.S.2d 347 [2d Dept.2012] ; see also CPLR 3015, 3018[b] ). Defendant was precluded from raising his contractual notice defense for the first time in his order to show cause to dismiss the complaint, which was in fact a motion to reargue (Matter of Setters v AI Props. & Devs. [USA] Corp., 139 A.D.3d 492, 32 N.Y.S.3d 87 [1st Dept.2016] ).
We have considered the remaining arguments and find them unavailing.