Calendar Date: January 20, 2017
Myers, LLP, Albany (Michael P. Chenel of counsel), for
Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham (Gary
A. Lefkowitz of counsel), for respondent.
Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
(1) from an order of the Supreme Court (Buchanan, J.),
entered October 2, 2014 in Schenectady County, which, among
other things, granted plaintiff's motion for summary
judgment, and (2) from a judgment of said court, entered
April 2, 2015 in Schenectady County, which, among other
things, granted plaintiff's motion for a judgment of
foreclosure and sale.
September 2008, defendant Allegra Holdings, LLC executed a
note in favor of plaintiff that was secured by a mortgage on
real property located in the City of Schenectady, Schenectady
County. Defendant Franca DiCrescenzo, the sole member of
Allegra Holdings, personally guaranteed the note. Plaintiff
subsequently commenced this foreclosure action alleging that
Allegra Holdings and DiCrescenzo (hereinafter collectively
referred to as defendants) failed to make timely payments due
under the note. Following joinder of issue, plaintiff moved
for summary judgment striking defendants' answer and for
the appointment of a referee to compute the amount due.
Defendants opposed the motion and cross-moved for summary
judgment. In October 2014, Supreme Court, among other things,
granted plaintiff's motion. A judgment of foreclosure and
sale in plaintiff's favor was subsequently entered in
April 2015. These appeals by defendants ensued. We affirm.
initial matter, contrary to plaintiff's contention, the
judicial sale of the subject property does not render
defendants' appeal moot inasmuch as this Court's
determination may impact defendants' right to restitution
under CPLR 5523 (see Hudson City Sav. Inst. v
Burton, 88 A.D.2d 728, 728 ).
to the merits, in an action to foreclose on a mortgage, a
plaintiff satisfies its summary judgment burden by submitting
a copy of the mortgage, the unpaid note and evidence of the
defendant's default in payments due (see Wells Fargo
Bank, N.A. v Walker, 141 A.D.3d 986, 987 ;
Green Planet Servicing, LLC v Martin, 141 A.D.3d
892, 893 ; Lasalle Bank Natl. Assn. v
Kosarovich, 31 A.D.3d 904, 905 ). We conclude that
plaintiff supported its motion with the requisite proof to
establish its entitlement to summary judgment and, therefore,
the burden shifted to defendants to raise a question of fact
as to a bona fide defense to foreclosure (see Nationstar
Mtge., LLC v Alling, 141 A.D.3d 916, 918 ;
HSBC Bank USA v Merrill, 37 A.D.3d 899, 900 ,
lv dismissed 8 N.Y.3d 967');">8 N.Y.3d 967 ).
opposition rested on the premise that they made a valid
tender of payment. In support of this proposition,
DiCrescenzo averred in an affidavit that rental payments from
the subject property were diverted through a receiver to
plaintiff in order to cover the mortgage payments.
Defendants, however, did not offer any evidence to
substantiate either DiCrescenzo's self-serving statements
that payments were made to plaintiff or the amount of such
purported payments (see Charter One Bank, FSB v
Leone, 45 A.D.3d 958, 959 ). Likewise, the
unsupported assertion by DiCrescenzo that she put the monthly
mortgage payments that plaintiff rejected into escrow does
not suffice to show a valid tender of payment. Here, once the
debt was accelerated upon defendants' default,
"plaintiff had no obligation to accept anything less
than payment of the full amount owed under the mortgage"
(Credit-Based Asset Servicing & Securitization v
Castelli, 275 A.D.2d 542, 544 ; see Bankers
Trust Co. v Hoovis, 263 A.D.2d 937, 938-939 ).
Because defendants failed to demonstrate that they tendered
payment of the full amount due, we conclude that Supreme
Court properly granted plaintiff's motion for summary
judgment and a judgment of foreclosure and sale in
plaintiff's favor (see United Cos. Lending Corp. v
Hingos, 283 A.D.2d 764, 765-766 ; Hudson City
Sav. Inst. v Burton, 88 A.D.2d at 728-729).
J.P., Egan Jr., Devine and Clark, JJ., concur.
that the order and judgment are ...