Opinion
2012-09-26
Vladimir SUDIT, doing business as VS International, respondent, v. Sara ROTH, also known as Chaya Roth, et al., appellants, et al., defendants.
James Klatsky, New York, N.Y., for appellants. Joseph J. Haspel, Goshen, N.Y., for respondent.
James Klatsky, New York, N.Y., for appellants. Joseph J. Haspel, Goshen, N.Y., for respondent.
In an action to foreclose a mortgage, the defendants Sara Roth, also known as Chaya Roth, and Moshe Roth appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated April 14, 2011, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff established its prima facie entitlement to judgment as a matter of law by producing a so-ordered stipulation setting forth the appellants' obligation arising from certain underlying mortgages and agreements, and proof of the appellants' default ( see Zanfini v. Chandler, 79 A.D.3d 1031, 1032, 912 N.Y.S.2d 911). In opposition, the appellants failed to raise a triable issue of fact. Contrary to the appellants' contention, the stipulation did not constitute a novation, as it did not extinguish the appellants' prior obligations ( see Rockwood v. Vicarious Visions, Inc., 44 A.D.3d 1229, 1230, 843 N.Y.S.2d 867;Albano v. Alba Carting Co., 251 A.D.2d 273, 672 N.Y.S.2d 259).
The appellants' remaining contention set forth in their reply brief is raised for the first time on appeal and, thus, is not properly before this Court ( see Charles v. Broad St. Dev., LLC., 95 A.D.3d 814, 947 N.Y.S.2d 518;Torah v. Dell Equity, LLC, 90 A.D.3d 746, 747, 935 N.Y.S.2d 33).
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment *710on the complaint insofar as asserted against the appellants.