ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition, LLC

ING Real Estate Fin. (USA) LLC v Park Ave. Hotel Acquisition, LLC 2011 NY Slip Op 07931 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Saxe, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Román, JJ.
5984 601860/09

[*1]ING Real Estate Finance (USA) LLC, et al., Plaintiffs-Respondents,

v

Park Avenue Hotel Acquisition, LLC, Defendant-Appellant, New York City Environmental Control Board, et al., Defendants.




Fried, Frank, Harris, Shriver & Jacobson LLP, New York
(Gregg L. Weiner of counsel), for appellant.
Morrison & Foerster LLP, New York (Rachel M. Wertheimer
of counsel), for respondents.

Order, Supreme Court, New York County (James A. Yates, J.), entered November 22, 2010, which, in a mortgage foreclosure action, to the extent appealed from as limited by the briefs, granted plaintiffs-lenders' motion for summary judgment as against defendant-appellant borrower, unanimously affirmed, with costs.

Plaintiffs established prima facie their right to foreclosure with undisputed evidence that defendant failed to pay the outstanding principal due under the parties' loan agreements (see JPMCC 2007-CIBC19 Bronx Apts., LLC v Fordham Fulton LLC, 84 AD3d 613 [2011]). In opposition, defendant failed to raise an issue of fact as to its unclean hands and bad faith affirmative defenses (id.). Indeed, defendant did not provide any evidentiary proof that plaintiffs' alleged conflict of interest caused or contributed to the failed negotiations of a prenegotiation agreement (see Marine Midland Bank v Cafferty, 174 AD2d 932, 934-935 [1991]). Under the circumstances, the court properly determined that discovery on the issue is unwarranted. In view of the foregoing, we need not address defendant's argument regarding the waiver provision in the parties' master credit agreement.

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011 [*2]

CLERK