Summary
concluding that a supported affirmative defense raised in opposition to summary judgment could create a question of fact as to plaintiff's entitlement to foreclosure
Summary of this case from Miss Jones LLC v. StilesOpinion
9932 Index 850251/13
09-26-2019
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Plaintiff–Respondent, v. Anthony Craig DESILVA also known as Anthony De Silva, Defendant–Appellant, Washington Mutual Bank, FA, et al., Defendants.
Mark M. Horowitz, Great Neck, for appellant. Eckert Seamans Cherin & Mellott, LLC, White Plains (Sarah J. Greenberg of counsel), for respondent.
Mark M. Horowitz, Great Neck, for appellant.
Eckert Seamans Cherin & Mellott, LLC, White Plains (Sarah J. Greenberg of counsel), for respondent.
Friedman, J.P., Renwick, Tom, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Judith N. McMahon, J.), entered on or about May 8, 2018, which granted plaintiff's motion for summary judgment on its mortgage foreclosure claim, unanimously affirmed, without costs. Plaintiff established prima facie its right to foreclosure by submitting the unpaid note, the mortgage, and defendant's answer in which he does not dispute his failure to pay and the plaintiff's service on him of the notice required by RPAPL 1304 (see Bernstein v. Dubrovsky , 169 A.D.3d 410, 91 N.Y.S.3d 692 [1st Dept. 2019] ). Contrary to plaintiff's contention, defendant Desilva's failure to plead affirmative defenses in his answer did not preclude him from raising them in opposition to summary judgment if he submitted documents which raised questions of fact ( JP Morgan Chase Bank, N.A. v. Salmon , 154 A.D.3d 603, 62 N.Y.S.3d 361 [1st Dept. 2017] ); however, he failed to do so.