Opinion
13138 Index No. 653396/19 Case No. 2020-03532
02-16-2021
BENEFIT STREET PARTNERS OPERATING PARTNERSHIP, L.P., Plaintiff–Appellant, v. 96 WYTHE ACQUISITION LLC, et al., Defendants–Respondents, Rent A Unit NY Inc., et al., Defendants
Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for appellant. Law Office of Abigail Shvartsman, P.C., Brooklyn (Abigail Shvartsman of counsel), for respondents.
Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for appellant.
Law Office of Abigail Shvartsman, P.C., Brooklyn (Abigail Shvartsman of counsel), for respondents.
Manzanet–Daniels, J.P., Webber, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered April 9, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its foreclosure claim as against defendants 96 Wythe Acquisition LLC, Toby Moskovits, and Yechiel Michael Lichtenstein, and dismissing defendants' remaining affirmative defenses and counterclaims, unanimously reversed, on the law, with costs, and the motion granted.
Plaintiff established prima facie entitlement to summary judgment by producing the mortgage, note, and guaranty executed by defendants, and evidence of defendants' default on their obligations thereunder, including their failure to timely repay the principal balance of the loan (see Wilmington Trust v. Sukhu, 155 A.D.3d 591, 591–592, 63 N.Y.S.3d 853 [1st Dept. 2017] ). Defendants failed to rebut that evidence, and they waived their affirmative defenses and counterclaims (see Fortress Credit Corp. v. Hudson Yards, LLC, 78 A.D.3d 577, 912 N.Y.S.2d 41 [1st Dept. 2010] ; Red Tulip LLC v. Neiva, 44 A.D.3d 204, 209–210, 842 N.Y.S.2d 1 [2007], lv dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ). The record does not support defendants' contention that the waiver of defenses provisions was rendered ineffective because the lender caused or contributed to the loan default. In any event, the defenses and counterclaims were not viable.