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Wash. Mut. Bank v. Schenk

Supreme Court, Appellate Division, Second Department, New York.
Dec 4, 2013
112 A.D.3d 615 (N.Y. App. Div. 2013)

Opinion

2013-12-4

WASHINGTON MUTUAL BANK, respondent, v. Carolyn SCHENK, appellant, et al., defendants.

Carolyn Mary Schenk, named herein as Carolyn Schenk, Staten Island, N.Y., appellant pro se. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent.


Carolyn Mary Schenk, named herein as Carolyn Schenk, Staten Island, N.Y., appellant pro se. Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Carolyn Schenk appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated October 27, 2009, as, in effect, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against her and to strike her answer, and (2) from an order of the same court, also dated October 27, 2009, which denied her motion, inter alia, for recusal.

ORDERED that the first order dated October 27, 2009, is affirmed insofar as appealed from; and it is further,

ORDERED that the second order dated October 27, 2009, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

“In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default” (Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 856, 877 N.Y.S.2d 200 [internal quotation marks omitted]; see Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 939 N.Y.S.2d 73; Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681). Here, the plaintiff bank sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting proof of the existence of the note and the mortgage, and the defendants' default in payment ( see Washington Mut. Bank v. Valencia, 92 A.D.3d 774, 939 N.Y.S.2d 73; Wells Fargo Bank v. Das Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d at 856, 877 N.Y.S.2d 200; Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 664 N.Y.S.2d 345). In response, the defendant Carolyn Schenk failed to raise a triable issue of fact relating to any bona fide defense to foreclosure ( see Washington Mut. Bank v. Valencia, 92 A.D.3d at 774, 939 N.Y.S.2d 73; Wells Fargo Bank v. Das Karla, 71 A.D.3d at 1006, 896 N.Y.S.2d 681; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d at 856, 877 N.Y.S.2d 200). Contrary to Schenk's contention, here, the plaintiff was not obligated to accept tender of less than full repayment as demanded ( see EMC Mtg. Corp. v. Stewart, 2 A.D.3d 772, 773, 769 N.Y.S.2d 408; United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 765–766, 724 N.Y.S.2d 134; First Fed. Sav. Bank v. Midura, 264 A.D.2d 407, 407–408, 694 N.Y.S.2d 121). Accordingly, the Supreme Court properly, in effect, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Schenk.

“ ‘Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of the need for recusal, and its decision is a matter of discretion and personal conscience’ ” (Galanti v. Kraus, 98 A.D.3d 559, 949 N.Y.S.2d 638, quoting Matter of O'Donnell v. Goldenberg, 68 A.D.3d 1000, 1000, 890 N.Y.S.2d 331; see People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200). Here, the Supreme Court providently exercised its discretion in denying that branch of Schenk's motion which was for recusal, since she did not establish that there was a basis for recusal pursuant to Judiciary Law § 14, and failed to set forth any proof of bias or prejudice on the part of the Supreme Court Justice ( see Burke v. Carrion, 101 A.D.3d 920, 921, 957 N.Y.S.2d 243; Galanti v. Kraus, 98 A.D.3d at 559, 949 N.Y.S.2d 638; Hayden v. Gordon, 91 A.D.3d 819, 937 N.Y.S.2d 299).

Schenk's remaining contentions are either based on matter dehors the record, improperly raised for the first time on appeal, or without merit. ANGIOLILLO, DICKERSON, AUSTIN and HINDS–RADIX, JJ., concur.


Summaries of

Wash. Mut. Bank v. Schenk

Supreme Court, Appellate Division, Second Department, New York.
Dec 4, 2013
112 A.D.3d 615 (N.Y. App. Div. 2013)
Case details for

Wash. Mut. Bank v. Schenk

Case Details

Full title:WASHINGTON MUTUAL BANK, respondent, v. Carolyn SCHENK, appellant, et al.…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Dec 4, 2013

Citations

112 A.D.3d 615 (N.Y. App. Div. 2013)
112 A.D.3d 615
2013 N.Y. Slip Op. 8072

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