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2010-1 Sfg Venture LLC v. 34-10 Development

Appellate Division, First Department New York Supreme and/or Appellate Courts


May 9, 2013

2010-1 SFG VENTURE LLC,
PLAINTIFF-APPELLANT,
v.
34-10 DEVELOPMENT, LLC, ET AL.,
DEFENDANTS-RESPONDENTS,
NCC FUNDING SP, LLC, ET AL. DEFENDANTS.

2010-1 SFG Venture LLC v 34-10 Dev., LLC

Decided on May 9, 2013

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.

Gonzalez, P.J., Tom, Sweeny, Renwick, Richter, JJ.

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered on or about August 5, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment seeking judgment of foreclosure and sale as against defendants-respondents, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this mortgage foreclosure action, plaintiff bank established a prima facie case of its entitlement to summary judgment by producing the mortgage, note, and guaranty executed by defendants-respondents, and evidence of defendants' default on their obligations thereunder (see Waterfall Victoria Master Fund, Ltd v Dingilian, 92 AD3d 593 [1st Dept 2012]; Chemical Bank v Broadway 55-56th St. Assoc., 220 AD2d 308 [1st Dept 1995]). Defendants failed to rebut that evidence and the record shows that they waived the affirmative defenses. Pursuant to choice-of-law provisions in some of the mortgage documents, both New York law and Georgia law govern the affirmative defenses on which defendants rely in seeking to raise an issue of fact. Under either state's law, defendants expressly waived such defenses through various provisions in the mortgage documents (see Citibank v Plapinger, 66 NY2d 90, 93 [1985]; Red Tulip, LLC v Neiva, 44 AD3d 204, 209 [1st Dept 2007], lv dismissed 10 NY3d 741 [2008], lv denied 13 NY3d 709 [2009]; Casgar v Citizens S. Natl. Bank, 188 Ga App 234, 236 [1988]).

We have reviewed defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 9, 2013

CLERK

20130509

© 1992-2013 VersusLaw Inc.



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