Rossrock Fund II, L.P. v. Osborne

• Citation: 82 A.D.3d 737,918 N.Y.S.2d 514
• Parties: ROSSROCK FUND II, L.P., respondent, v. George R. OSBORNE, et al., appellants, et al., defendants.
• Decision Date: 01 March 2011
• Court: New York Supreme Court Appellate Division

918 N.Y.S.2d 514
82 A.D.3d 737

ROSSROCK FUND II, L.P., respondent,
v.
George R. OSBORNE, et al., appellants, et al., defendants.

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

March 1, 2011.

918 N.Y.S.2d 515

George R. Osborne, Clinton Corners, N.Y., appellant pro se.

MacVean, Lewis, Sherwin & McDermott P.C., Middletown, N.Y. (Kevin F. Preston and Ferol Reed McDermott of counsel), for respondent.

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and JOHN M. LEVENTHAL, JJ.

In an action to foreclose two mortgages, the defendants Patrisha Osborne and George R. Osborne appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated August 3, 2009, which denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them and, in effect, denied that branch of their motion which was to voluntarily discontinue their counterclaim, and granted the plaintiff's cross motion for summary judgment on the complaint and dismissing the counterclaim.

ORDERED that the appeal by the defendant Patrisha Osborne is dismissed as abandoned ( see 22 NYCRR 670.8[a] ); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

"[I]n moving for summary judgment in 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" ( Republic Natl. Bank of N.Y. v. O'Kane, 308 A.D.2d 482, 482, 764 N.Y.S.2d 635, quoting Village Bank v. Wild Oaks Holding, 196 A.D.2d 812, 812, 601 N.Y.S.2d 940). Here, the plaintiff produced the notes and mortgages executed by, among others, the defendant George R. Osborne (hereinafter the appellant), as well as evidence of nonpayment. Accordingly, the plaintiff met its prima facie burden of demonstrating its entitlement to judgment as a matter of law on the complaint.

In response, the appellant failed to raise a triable issue of fact as to his defenses to the complaint ( see Wells Fargo Bank Minn., Natl. Assn. v. Perez, 41 A.D.3d 590, 837 N.Y.S.2d 877). The appellant's contention that the statements and conduct of the plaintiff's predecessor constituted an oral waiver of the right to foreclose is belied by his own affidavit, in which he avers that he "understood that [the plaintiff's predecessor] could, on any given day, decide to begin foreclosure" ( see generally ...