Horizons Investors Corp. v. Brecevich

• Decision Date: 12 March 2013
• Citation: 2013 N.Y. Slip Op. 01514,961 N.Y.S.2d 112,104 A.D.3d 475
• Parties: HORIZONS INVESTORS CORP., Plaintiff–Respondent, v. John BRECEVICH, etc., et al., Defendants–Appellants, Warminster Investment Corp., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 475

961 N.Y.S.2d 112

2013 N.Y. Slip Op. 01514

HORIZONS INVESTORS CORP., Plaintiff–Respondent,

v.John BRECEVICH, etc., et al., Defendants–Appellants,Warminster Investment Corp., et al., Defendants.

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

March 12, 2013.

Boris Kogan & Associates, New York (David Binson of counsel), for appellants.

Chris Mills, New York, for respondent.

MAZZARELLI, J.P., SAXE, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 26, 2011, which, to the extent appealed from as limited by the briefs, in this mortgage foreclosure action, granted plaintiff's motion for summary judgment and denied the cross motion of defendants John Brecevich a/k/a Giovanni Brecevich and Rosemary Brecevich to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting proof of the mortgage and evidence of default, and defendants failed to come forward with evidence sufficient to raise an issue of fact as to an available defense ( see e.g. CitiFinancial Co. [DE] v. McKinney, 27 A.D.3d 224, 811 N.Y.S.2d 359 [1st Dept. 2006] ). The motion court properly determined that the statutes governing pleading and notice requirements and mandating settlement conferences in foreclosure actions on certain home loans were inapplicable to the instant action ( seeRPAPL 1302, 1303, 1304 and 1320; CPLR 3408; see also Pritchard v. Curtis, 101 A.D.3d 1502, 1504 n. 1, 957 N.Y.S.2d 440 [3d Dept. 2012] ). Nor did defendants raise an issue of fact that the subject loan was usurious or that plaintiff acted with unclean hands or in bad faith by recording the deed upon defendants' default.