Opinion
02-17-2015
The BANK OF NEW YORK MELLON formerly know as The Bank of New York, as Successor to JP Morgan Chase Bank, NA, etc., Plaintiff–Respondent, v. Keith ARTHUR, Defendant–Appellant, New York City Environmental Control Board, et al., Defendants.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for appellant. Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for respondent.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for appellant.
Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for respondent.
GONZALEZ, P.J., ACOSTA, SAXE, MANZANET–DANIELS, CLARK, JJ.
Opinion Orders, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 24, 2013, and November 27, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on its mortgage foreclosure claim and to dismiss defendant's affirmative defenses and counterclaims, and denied defendant's cross motion for summary judgment, unanimously affirmed, without costs.
Contrary to plaintiff's argument, the arguments raised by defendant for the first time on appeal may be considered since the issues raised are determinative and present purely legal arguments without raising new facts (Seldon v. Allstate Ins. Co., 107 A.D.3d 424, 971 N.Y.S.2d 438 [1st Dept.2013] ; Facie Libre Associates I, LLC v. SecondMarket Holdings, Inc., 103 A.D.3d 565, 961 N.Y.S.2d 44 [1st Dept.2013], lv.
denied 21 N.Y.3d 866, 2013 WL 5180437 [2013] ). Having considered these arguments, we find that the motion court properly found that plaintiff established its prima facie right to foreclosure by producing the note, mortgage and undisputed evidence of nonpayment (see 71 Clinton St. Apts. LLC v. 71 Clinton Inc., 114 A.D.3d 583, 584, 982 N.Y.S.2d 6 [1st Dept.2014] ; Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept.2007], lv. dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ), and that, in opposition, defendant failed to raise a triable issue regarding his affirmative defenses and counterclaims. Defendant failed to establish a triable issue regarding plaintiff's standing based on improper indorsement or physical delivery of the loan documents, or plaintiff's notice to defendant pursuant to Real Property Actions and Proceedings Law § 1304.