| Wells Fargo Bank, N.A. v DeSouza |
| 2015 NY Slip Op 02470 |
| Decided on March 25, 2015 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 25, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2014-04209
(Index No. 503174/12)
v
Garvin DeSouza, appellant, et al., defendants.
Bryer & David, New York, N.Y. (Marvin M. David of counsel), for appellant.
McNamee, Lochner, Titus & Williams, P.C., Albany, N.Y. (Kenneth L. Gellhaus of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Garvin DeSouza appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated March 10, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and to appoint a referee.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the appellant's contention, the plaintiff established its prima facie entitlement to judgment as a matter of law in this foreclosure action by producing the mortgage, the unpaid note, and evidence of the appellant's default in payment (see One W. Bank, FSB v DiPilato, 124 AD3d 375; Peak Fin. Partners, Inc. v Brook, 119 AD3d 539; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895). In opposition, the appellant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to a bona fide defense (see Independence Bank v Valentine, 113 AD3d 62; Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793). Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellant and to appoint a referee (see Alvarez v Prospect Hosp., 68 NY2d 320).
The appellant's remaining contentions are improperly raised for the first time on appeal.
MASTRO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court