Baron Assocs., LLC v. Garcia Grp. Enters., Inc.

• Citation: 96 A.D.3d 793,2012 N.Y. Slip Op. 04707,946 N.Y.S.2d 611
• Parties: BARON ASSOCIATES, LLC, et al., appellants, v. GARCIA GROUP ENTERPRISES, INC., also known as Garcia Group Enterprises, et al., respondents, et al., defendants.
• Decision Date: 13 June 2012
• Court: New York Supreme Court Appellate Division

96 A.D.3d 793
946 N.Y.S.2d 611
2012 N.Y. Slip Op. 04707

BARON ASSOCIATES, LLC, et al., appellants,
v.
GARCIA GROUP ENTERPRISES, INC., also known as Garcia Group Enterprises, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

June 13, 2012.

Jason Chang, Brooklyn, N.Y., for appellants.

J. A. Sanchez, New York, N.Y., for respondents.

DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

[96 A.D.3d 793]In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated September 16, 2011, which denied

[946 N.Y.S.2d 612]

their motion for summary judgment on the complaint and dismissing the counterclaim.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the complaint and dismissing the counterclaim is granted.

“[I]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default” ( Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 1080, 915 N.Y.S.2d 591 [internal quotation marks omitted]; see U.S. Bank Natl. Assn. TR U/S 6/01/98 [ Home Equity Loan Trust 1998–2 ] v. Alvarez, 49 A.D.3d 711, 854 N.Y.S.2d 171). Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on their complaint by submitting the subject commercial mortgage and the underlying unpaid note executed by the mortgagor, the defendant Garcia Group Enterprises, Inc., also known as Garcia Group Enterprises (hereinafter Garcia Group), a personal guaranty by the Garcia Group's president, the defendant Roger Garcia, and evidence that Garcia Group and Garcia (hereinafter together the respondents) were in default ( id.). Once the plaintiffs made their prima facie showing, the burden shifted to the respondents to demonstrate “the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff” ( Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345;see Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265;U.S. Bank Natl. Assn. TR U/S 6/01/98 [ Home Equity Loan Trust 1998–2 ] v. Alvarez, 49 A.D.3d at 711, 854 N.Y.S.2d 171). “As a general proposition,...