Raia v. Pototschnig

• Decision Date: 21 April 2015
• Docket Number: 14870, 113006/09
• Parties: Joseph RAIA, Plaintiff–Respondent, v. Hubert POTOTSCHNIG, Defendant–Appellant, New Century Mortgage Corporation, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 574

8 N.Y.S.3d 654

2015 N.Y. Slip Op. 03282

Joseph RAIA, Plaintiff–Respondent

v. Hubert POTOTSCHNIG, Defendant–AppellantNew Century Mortgage Corporation, et al., Defendants.

14870, 113006/09

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

April 21, 2015.

Hubert Pototschnig, appellant pro se.

Jeffrey I. Baum & Associates, P.C., Garden City (Maksim Leyvi of counsel), for respondent.

TOM, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, DeGRASSE, JJ.

Opinion

Order, Supreme Court, New York County (George J. Silver, J.), entered February 21, 2014, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on his mortgage foreclosure claim against defendant Hubert Pototschnig, unanimously affirmed, with costs.

Plaintiff established prima facie his right to foreclosure by producing the mortgage documents, undisputed evidence of default, and a personal guaranty of payment of the mortgage note signed by defendant Pototschnig (see Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept.2007], lv. dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ). In opposition, defendant failed to raise a triable issue of fact as to his affirmative defenses. As the motion court found, the statutes governing pleading and notice requirements and mandating settlement conferences in foreclosure actions involving certain home loans are inapplicable to the instant action (see RPAPL 1302 ; 1303; 1304; CPLR 3408 ).

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