Wilmington Trust v Ragobar Sukhu

Wilmington Trust v Ragobar Sukhu 2017 NY Slip Op 08455 Decided on November 30, 2017 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 30, 2017
Renwick, J.P., Manzanet-Daniels, Mazzarelli, Kahn, Moulton, JJ.
850313/14 5101A 5101

[*1] 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.

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 AD3d 602 [1st Dept 2015]; Horizons Invs. Corp. v Brecevich, 104 AD3d 475 [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 AD3d 1199, 1200-1201 [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 AD3d 492 [1st Dept 2016]).

We have considered the remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 30, 2017

CLERK