Opinion
2012-02-23
WATERFALL VICTORIA MASTER FUND, LTD, Plaintiff–Respondent, v. Edward G. DINGILIAN, etc., Defendant–Appellant,Peggy I. Dingillian, etc., et al., Defendants.
F. Todd McLoughlin, New York, for appellant. Jaspan Schlesinger, LLP, Garden City (Antonia M. Donohue of counsel), for respondent.
F. Todd McLoughlin, New York, for appellant. Jaspan Schlesinger, LLP, Garden City (Antonia M. Donohue of counsel), for respondent.
TOM, J.P., FRIEDMAN, SWEENY, MOSKOWITZ, DeGRASSE, JJ.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 18, 2011, which to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment, unanimously affirmed, without costs.
Plaintiff established prima facie its right to foreclosure and to a deficiency judgment against defendant Edward G. Dingilian by producing the mortgage documents underlying the transaction and evidence of nonpayment, which default defendant failed to rebut, as well as the personal guaranty signed by defendant as additional collateral for the mortgage. Defendant failed to raise an issue of fact as to any defense ( see Hypo Holdings v. Chalasani, 280 A.D.2d 386, 721 N.Y.S.2d 35 [2001], lv. denied 96 N.Y.2d 717, 730 N.Y.S.2d 791, 756 N.E.2d 79 [2001] ). Defendant's argument that an affidavit in support of the motion was based entirely upon inadmissible hearsay and incorrect information is unpreserved, and in any event, it is unavailing. Further, the court properly permitted plaintiff to discontinue the action against the decedent, who had conveyed the mortgaged property prior to his death ( see DLJ Mtge. Capital Inc. v. 44 Brushy Neck, Ltd., 51 A.D.3d 857, 859 N.Y.S.2d 221 [2008] ).
We have considered defendant's other arguments and find them unavailing.