Fortress Credit Corp. v. Hudson Yards, LLC

• Decision Date: 23 November 2010
• Citation: 78 A.D.3d 577,912 N.Y.S.2d 41
• Parties: FORTRESS CREDIT CORP., et al., Plaintiffs-Respondents, v. HUDSON YARDS, LLC, et al., Defendants, Baruch Singer, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 41

78 A.D.3d 577

FORTRESS CREDIT CORP., et al., Plaintiffs-Respondents,

v.HUDSON YARDS, LLC, et al., Defendants,Baruch Singer, Defendant-Appellant.

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

Nov. 23, 2010.

Sukenik, Segal & Graff, P.C., New York (Douglas Segal of counsel), for appellant.

Sills Cummis & Gross, P.C., New York (Mitchell D. Haddad of counsel), for respondents.

ANDRIAS, J.P., CATTERSON, MOSKOWITZ, MANZANET-DANIELS, ROMÁN, JJ.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered September 18, 2009, as amended by order, same court and Justice, entered November 13, 2009, which, insofar as appealed from as limited by the briefs, granted plaintiffs' motion for summary judgment on their claims for foreclosure and a conditional deficiency judgment against defendant-appellant guarantor (defendant), and dismissed defendant's counterclaims, unanimously affirmed, with costs.

Plaintiffs met their prima facie burden by producing the mortgage documents and undisputed evidence of default, namely, nonpayment and a transfer of the mortgaged property without plaintiffs' prior consent; in addition, plaintiffs showed that defendant signed a personal guaranty as additional collateral for the note. Thus, the burden shifted to defendant to raise a triable issue of fact regarding his affirmative defenses to foreclosure ( see Red Tulip LLC v. Neiva, 44 A.D.3d 204, 209-210, 842 N.Y.S.2d 1 [2007], lv. denied 13 N.Y.3d 709, 2009 WL 3349931 [2009] ). Defendant's affirmative defenses, however, are precluded by the guaranty, which waived all defenses and counterclaims except actualpayment and performance in full, which defendant has not alleged ( id.). It does not avail defendant that his defense-plaintiffs' alleged tortious interference with a potential sale of the mortgaged property for an amount in excess of the outstanding mortgage obligations-arose after the waiver had been executed ( see Hotel 71 Mezz Lender LLC v. Mitchell, 63 A.D.3d 447, 448, 880 N.Y.S.2d 67 [2009] ). In any event, defendant's allegations of interference lack evidentiary support ( see Banco Popular N. Am. v. Victory Taxi Mgt., 1 N.Y.3d 381, 383-384, 774 N.Y.S.2d 480, 806 N.E.2d 488 [2004] ). We have considered defendant's other arguments and find them unavailing.