Opinion
8320 Index 850081/17
02-05-2019
Daniel BERNSTEIN, Plaintiff–Respondent, v. Luiza DUBROVSKY, Defendant–Appellant, The New York State Department of Taxation and Finance, et al., Defendants.
Woods Lonergan PLLC, New York (Annie E. Causey of counsel), for appellant. Oved & Oved LLP, New York (Edwards C. Wipper of counsel), for respondent.
Woods Lonergan PLLC, New York (Annie E. Causey of counsel), for appellant.
Oved & Oved LLP, New York (Edwards C. Wipper of counsel), for respondent.
Friedman, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Plaintiff met his prima facie burden in this foreclosure action by producing the mortgage documents and evidence of defendant's default, shifting the burden to defendant to raise a triable issue of fact regarding her affirmative defenses to foreclosure ( Fortress Credit Corp. v. Hudson Yards, LLC, 78 A.D.3d 577, 912 N.Y.S.2d 41 [1st Dept. 2010] ). Her affirmative defenses, however, are precluded by a forbearance agreement in which defendant waived any affirmative defenses in exchange for, inter alia, an extension of time to repay the loan (see id. ; Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept. 2007], lv dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ). Moreover, Supreme Court correctly refused to deny the motion as premature pursuant to CPLR 3212(f) ; because the affirmative defenses are precluded, no discovery could lead to facts that would warrant the denial of plaintiff's summary judgment motion.
Defendant was not entitled to a residential foreclosure settlement conference pursuant to CPLR 3408 because the loan secured by the mortgage was not primarily for personal, family, or household purposes ( CPLR 3408 ; RPAPL 1304[6][a][1] ; Independence Bank v. Valentine, 113 A.D.3d 62, 66–67, 976 N.Y.S.2d 504 [2d Dept. 2013] ).