New York Supreme and/or Appellate Courts Appellate Division, First Department
February 23, 2012
WATERFALL VICTORIA MASTER FUND, LTD, PLAINTIFF-RESPONDENT,
EDWARD G. DINGILIAN, ETC., DEFENDANT-APPELLANT, PEGGY I. DINGILLIAN, ETC., ET AL., DEFENDANTS.
Waterfall Victoria Master Fund, Ltd v Dingilian
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 23, 2012
Tom, J.P., Friedman, Sweeny, Moskowitz, DeGrasse, JJ.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 18, 2011, which to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, without costs.
Plaintiff established prima facie its right to foreclosure and to a deficiency judgment against defendant Edward G. Dingilian by producing the mortgage documents underlying the transaction and evidence of nonpayment, which default defendant failed to rebut, as well as the personal guaranty signed by defendant as additional collateral for the mortgage. Defendant failed to raise an issue of fact as to any defense (see Hypo Holdings v Chalasani, 280 AD2d 386 , lv denied 96 NY2d 717 ). Defendant's argument that an affidavit in support of the motion was based entirely upon inadmissible hearsay and incorrect information is unpreserved, and in any event, it is unavailing. Further, the court properly permitted plaintiff to discontinue the action against the decedent, who had conveyed the mortgaged property prior to his death (see DLJ Mtge. Capital Inc. v 44 Brushy Neck, Ltd., 51 AD3d 857 ).
We have considered defendant's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 23, 2012
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