ING REAL ESTATE FINANCE USA LLC v. New York City Environmental Control Board, et al., Defendants. (2011)

Order, Supreme Court, New York County (James A. Yates, J.), entered November 22, 2010, which, in a mortgage foreclosure action, to the extent appealed from as limited by the briefs, granted plaintiffs-lenders' motion for summary judgment as against defendant-appellant borrower, unanimously affirmed, with costs.

Plaintiffs established prima facie their right to foreclosure with undisputed evidence that defendant failed to pay the outstanding principal due under the parties' loan agreements (see JPMCC 2007–CIBC19 Bronx Apts., LLC v. Fordham Fulton LLC, 84 A.D.3d 613, 922 N.Y.S.2d 779 [2011] ).   In opposition, defendant failed to raise an issue of fact as to its unclean hands and bad faith affirmative defenses (id.).   Indeed, defendant did not provide any evidentiary proof that plaintiffs' alleged conflict of interest caused or contributed to the failed negotiations of a prenegotiation agreement (see Marine Midland Bank v. Cafferty, 174 A.D.2d 932, 934–935, 571 N.Y.S.2d 628 [1991] ).   Under the circumstances, the court properly determined that discovery on the issue is unwarranted.   In view of the foregoing, we need not address defendant's argument regarding the waiver provision in the parties' master credit agreement.

We have considered defendant's remaining contentions and find them unavailing.