July 31, 2013
New York Commercial Bank, appellant,
J. Realty F Rockaway, Ltd., et al., respondents. Index No. 16528/11
Cullen and Dykman, LLP, New York, N.Y. (Samit G. Patel of counsel), for appellant.
Warren S. Hecht, Forest Hills, N.Y., for respondents J. Realty F Rockaway, Ltd., J & F Rockaway Tavern, Ltd., and Gerald Perich.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JJ.
DECISION & ORDER
In an action to recover on a promissory note, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered March 22, 2012, which denied its motion for summary judgment, and granted the defendants' cross motion to consolidate the instant action with an action entitled New York Commercial Bank v J Realty F Rockaway, Ltd., pending in the Supreme Court, Queens County, under Index No. 700818/11, and to place venue in Queens County.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment is granted, and the defendants' cross motion to consolidate the two actions and to place venue in Queens County is denied.
"To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note's terms" (Lugli v Johnston, 78 A.D.3d 1133, 1135; see Sound Shore Med. Ctr. of Westchester v Maloney, 96 A.D.3d 823).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the promissory note and loan agreement signed by the defendant, J. Realty F Rockaway, Ltd. (hereinafter J Realty), and guaranteed by the defendants J & F Rockaway Tavern, Ltd., Gerald Perich, and Frank Walker, coupled with an affidavit from one of the plaintiff's loan recovery officers asserting that J Realty failed to repay the loan in accordance with the terms of the note (see Lugli v Johnston, 78 A.D.3d at 1135). In opposition, the defendants failed to raise a triable issue of fact with respect to a bona fide defense (see Sound Shore Med. Ctr. of Westchester v Maloney, 96 A.D.3d at 823; Jin Sheng He v Sing Huei Chang, 83 A.D.3d 788, 789). The Supreme Court should not have, sua sponte, concluded that a triable issue of fact existed as to whether the plaintiff had complied with RPAPL 1301(3), since the defendants never raised that affirmative defense in their opposition papers and, thus, by their failure to do so, waived it (see HSBC Bank USA, N.A. v Taher, 104 A.D.3d 815; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 A.D.3d 239, 242; First Nationwide Bank v Brookhaven Realty Assoc., 223 A.D.2d 618, 621).
There was no basis to consolidate the instant action with a pending foreclosure action in Queens County because the two actions do not share common questions of law or fact (see CPLR 602[a]; Perini Corp. v WDF, Inc., 33 A.D.3d 605, 606).
Further, the plaintiff appropriately placed the venue of this action in Nassau County pursuant to a forum selection clause in the subject promissory note, and the defendants failed to show that the forum selection clause was invalid (see KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 A.D.3d 650, 651).
RIVERA, J.P., SKELOS, CHAMBERS and AUSTIN, JJ., concur.