New York Supreme and/or Appellate Courts Appellate Division, First Department
March 12, 2013
HORIZONS INVESTORS CORP., PLAINTIFF-RESPONDENT, --
JOHN BRECEVICH, ETC., ET AL., DEFENDANTS-APPELLANTS, WARMINSTER INVESTMENT CORP., ET AL., DEFENDANTS.
Horizons Invs. Corp. v Brecevich
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 March 12, 2013 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 AD3d 224 [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 (see RPAPL 1302, 1303, 1304 and 1320; CPLR 3408; see also Pritchard v Curtis, 101 AD3d 1502, 1504 n 1 [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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 12, 2013
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