Opinion
2014-04-30
BANK OF NEW YORK MELLON TRUST COMPANY, etc., respondent, v. Linda L. McCALL, et al., appellants, et al., defendants.
Michael J. Marcellino, Williston Park, N.Y., for appellants. Leopold & Associates, PLLC, Armonk, N.Y. (Catherine Welker of counsel), for respondent.
Michael J. Marcellino, Williston Park, N.Y., for appellants. Leopold & Associates, PLLC, Armonk, N.Y. (Catherine Welker of counsel), for respondent.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
In an action to foreclose a mortgage, the defendants Linda L. McCall and Walter J. Gibbs, Jr., as guardian for the personal needs and property management of Linda L. McCall, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), dated April 27, 2012, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Linda L. McCall and to strike the counterclaim and affirmative defense in her answer, and to add Walter J. Gibbs, Jr., as guardian for the personal needs and property management of Linda L. McCall, as a defendant in the action.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage. In her answer, the defendant Linda L. McCall asserted, as her sole affirmative defense, that she was fraudulently induced into entering into the subject mortgage transaction.
The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against McCall. The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the underlying note, and evidence of McCall's default, and by demonstrating that McCall's affirmative defense was without merit ( see Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883 N.Y.S.2d 135;Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244–245, 837 N.Y.S.2d 247;Lavi v. Hamedani, 234 A.D.2d 428, 651 N.Y.S.2d 126). In opposition, McCall failed to raise a triable issue of fact in support of her allegations of fraud. McCall waived her right to challenge the plaintiff's standing by failing to raise it in her answer or in a pre-answer motion to dismiss ( seeCPLR 3211[a] [3]; [e]; Citibank, N.A. v. Herrera, 64 A.D.3d 536, 881 N.Y.S.2d 334;Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d at 240, 837 N.Y.S.2d 247).
The appellants' remaining contentions are without merit.