Calendar Date: January 11, 2017
Office of Jeffrey Zimring, Albany (Budrawi Alan Bazzari of
counsel), for appellants.
Office of Christopher Hliboki, Hackensack, New Jersey
(Christopher W. Hliboki of counsel), for respondent.
Before: McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Krogmann, J.), entered
October 7, 2015 in Warren County, which, among other things,
granted plaintiff's motion for summary judgment.
August 17, 2012, Frank Panella and defendants Northwest Bay
Partners, Ltd. and Michael O'Brien (hereinafter
collectively referred to as defendants) entered into a
settlement agreement, which stipulated that defendants
execute a promissory note in the amount of $1, 000, 000. On
the same date, defendants executed a promissory note for that
amount in favor of Panella that was secured by a mortgage on
seven of their lots in Warren County.
defendants failed to pay real estate taxes due on the subject
properties, Warren County commenced a tax lien foreclosure
action against defendants and imposed a redemption deadline
of August 2, 2013. One week prior to the redemption deadline,
Panella paid Warren County the sum of $168, 626.95 in
satisfaction of the tax arrearages. Thereafter, Panella
formed plaintiff and assigned it his interest in the subject
result of defendants' failure, among other things, to pay
the real estate taxes, which was an obligation under the
promissory note and mortgage, plaintiff commenced the instant
foreclosure action. After joinder of issue, plaintiff moved
for summary judgment. Defendants opposed the motion and
cross-moved for, among other things, summary judgment
dismissing the complaint. Supreme Court granted
plaintiff's motion. Defendants now appeal . We affirm.
production of the promissory note, mortgage, settlement
agreement and evidence of defendants' default under the
loan documents demonstrates its entitlement to summary
judgment (see Nationstar Mtge., LLC v Alling, 141
A.D.3d 916, 917-918 ; Deutsche Bank Natl. Trust Co.
v Monica, 131 A.D.3d 737, 738 ; PHH Mtge.
Corp. v Davis, 111 A.D.3d 1110, 1111  lv
dismissed 23 N.Y.3d 940');">23 N.Y.3d 940 ). Where, as here, a
mortgagee satisfies its burden by establishing its prima
facie case, the burden then shifts to the mortgagors to
produce competent and admissible evidence demonstrating the
existence of a material issue of fact (see HSBC Bank USA,
N.A. v Sage, 112 A.D.3d 1126, 1127 , lvs
dismissed 22 N.Y.3d 1172');">22 N.Y.3d 1172 , 23 N.Y.3d 1015');">23 N.Y.3d 1015 ;
see generally Zuckerman v City of New York, 49
N.Y.2d 557, 562 ).
opposition, defendants argue, and we disagree, that an issue
of fact exists because plaintiff improperly mailed the notice
of default to the address of defendants' then counsel
rather than mailing it to an alternative address that
plaintiff should have known from the parties' course of
dealings. The mortgage, in pertinent part, provided that all
notices were required to be "sent to the party at its
current address or such other address as any party shall
hereafter inform the other party hereto by written
notice." Thus, we find no fault with the fact that
plaintiff mailed the notice to the address of defendants'
then counsel as that address was the only one provided for
the purpose of sending notices to defendants (see Grogg v
South Rd. Assoc., L.P., 74 A.D.3d 1021, 1022 ).
Furthermore, defendants did not submit evidence demonstrating
that they had provided plaintiff with written notice of an
alternative address for receiving notices.
reject defendants' assertion that the notice of default
is defective because it alleged defaults under the settlement
agreement instead of alleging defaults under the mortgage.
The promissory note provided that the parties "shall be
bound by and shall comply with all of the terms, covenants
and conditions of the parties' Mortgage Agreement and
Settlement Agreement, all of which shall be construed as one
(1) instrument." Hence, this argument is without merit
because the terms of the settlement agreement were
incorporated into the mortgage.
defendants also rely on the affidavit by O'Brien wherein
he stated that, prior to the redemption deadline imposed by
Warren County concerning the tax arrearages, he was in the
process of negotiating with the County about satisfying the
payments due. Defendants, however, failed to substantiate
such self-serving statement (see Charter One Bank, FSB v
Leone, 45 A.D.3d 958, 959 ) and, even if they did,
such negotiations do not raise an issue of fact as to whether
they complied with their obligations under the loan
documents. Because defendants failed to raise a ...