Opinion
08-31-2016
Herman SCHWYTER, et al., respondents, v. John DeNOBLE, Jr., appellant, et al., defendants.
John B. Gulino, P.C., Staten Island, N.Y. (Robert Farrell, Jr., of counsel), for appellant. Hall & Hall LLP, Staten Island, N.Y. (John G. Hall of counsel), for respondents.
John B. Gulino, P.C., Staten Island, N.Y. (Robert Farrell, Jr., of counsel), for appellant.
Hall & Hall LLP, Staten Island, N.Y. (John G. Hall of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the defendant John DeNoble, Jr., appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Green, J.), dated March 31, 2015, as granted those branches of the motion of Warsowe Acquisition Corporation, doing business as Warsowe Financial Corp., which were for summary judgment on the complaint insofar as asserted against him and to substitute Herman Schwyter and Margaritha Schwyter as the plaintiffs.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this mortgage foreclosure action, the Supreme Court properly granted that branch of the motion of Warsowe Acquisition Corporation, doing business as Warsowe Financial Corp. (hereinafter Warsowe), which was for summary judgment on the complaint insofar as asserted against the defendant John DeNoble, Jr. Warsowe made a prima facie showing of entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and evidence of DeNoble's default (see Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 895, 964 N.Y.S.2d 548 ; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 ). In opposition, DeNoble failed to raise a triable issue of fact as to a bona fide defense to the action (see Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d at 895, 964 N.Y.S.2d 548 ; Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 946 N.Y.S.2d 611 ). Specifically, DeNoble failed to raise a triable issue of fact as to whether the interest on the subject loan was usurious (see Abir v. Malky, Inc., 59 A.D.3d 646, 873 N.Y.S.2d 350 ; cf. Oliveto Holdings, Inc. v. Rattenni, 110 A.D.3d 969, 973 N.Y.S.2d 321 ).
The Supreme Court providently exercised its discretion in granting that branch of Warsowe's motion which was to substitute Herman Schwyter and Margaritha Schwyter as the plaintiffs (see CPLR 1018 ; Mortgage Elec. Registration Sys., Inc. v. Holmes, 131 A.D.3d 680, 17 N.Y.S.3d 31 ; Maspeth Fed. Sav. & Loan Assn. v. Simon–Erdan, 67 A.D.3d 750, 751, 888 N.Y.S.2d 599 ). Warsowe established that the mortgage was assigned to the Schwyters after this action had been commenced. DeNoble's contention that the Schwyters lack standing to be substituted as the plaintiffs because there was insufficient evidence that the Schwyters possessed the note is improperly raised for the first time on appeal (see Retained Realty, Inc. v. Syed, 137 A.D.3d 1099, 26 N.Y.S.3d 889 ; HSBC Bank USA, N.A. v. Calderon, 115 A.D.3d 708, 981 N.Y.S.2d 598 ).