Seaway Capital Corp. v. 500 Sterling Realty Corp.

• Decision Date: 10 April 2012
• Citation: 941 N.Y.S.2d 871,2012 N.Y. Slip Op. 02667,94 A.D.3d 856
• Parties: SEAWAY CAPITAL CORP., respondent, v. 500 STERLING REALTY CORP., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02667
94 A.D.3d 856
941 N.Y.S.2d 871

SEAWAY CAPITAL CORP., respondent,
v.
500 STERLING REALTY CORP., appellant, et al., defendants.

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

April 10, 2012.

Michael J. Petersen, Brooklyn, N.Y., for appellant.

Borchert, Genovesi & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert and Robert W. Frommer of counsel), for respondent.

[94 A.D.3d 856] In an action to foreclose a mortgage, the defendant 500 Sterling Realty Corp. appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Kings County (Kramer, J.), dated September 17, 2009, as granted those branches of the plaintiff's motion which were, in effect, for summary judgment on the complaint insofar as asserted against it, and to strike its answer, and (2) so much of an order of the same court dated January 8, 2010, as granted the plaintiff's motion to extend the time to serve a copy of the order dated September 17, 2009, upon it, and (3) so much of an order of the same court entered November 9, 2010, as denied its motion for leave to renew its opposition to that branch of the plaintiff's motion which was, in effect, for summary judgment on the complaint insofar as asserted against it.

ORDERED that the appeal from the order dated January 8, 2010, is dismissed as abandoned; and it is further,

ORDERED that the order dated September 17, 2009, and the order entered November 9, 2010, are affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff established its prima facie entitlement to judgment as a matter of law against the defendant 500 Sterling Realty Corp. (hereinafter 500 Sterling) by submitting proof of the existence of the mortgage and note made by and executed on behalf of 500 Sterling, certain forbearance agreements, and the default of 500 Sterling ( see HSBC Bank USA, NA v. Schwartz, 88 A.D.3d 961, 931 N.Y.S.2d 528; Valley Natl. Bank v. Deutsch, 88 A.D.3d 691, 930 N.Y.S.2d 477; Inland Mtge. Capital Corp. v. Realty Equities NM, LLC, 71 A.D.3d 1089, 900 N.Y.S.2d 79; JP Morgan Chase Bank, N.A. v. Agnello, 62 A.D.3d 662, 663, 878 N.Y.S.2d 397). In opposition, 500 Sterling failed to raise a triable issue of fact ( see Freedman v. Chemical Constr. Corp., 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 372 N.E.2d 12; Hellas Fos, Inc. v. Russo, 84 A.D.3d 1166, 924 N.Y.S.2d 447; Phillips v. Isaiah Owens Funeral Serv., Inc., 69 A.D.3d 822, 892...