GERBER v. CELLA (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (David M. Gandin, J.), entered July 5, 2022 in Ulster County, which, among other things, granted plaintiffs’ motion for summary judgment.

Defendant Jo Ann Cella (hereinafter defendant) executed a note secured by a mortgage on real property located in Ulster County.  After defendant defaulted on her financial obligations, plaintiffs commenced this action to foreclose on the mortgage.  Following joinder of issue, plaintiffs moved for summary judgment.  Defendant cross-moved for summary judgment dismissing the complaint, arguing that the complaint was barred by the statute of limitations.  Supreme Court granted plaintiffs’ motion and denied defendant's cross-motion.  Defendant appeals.¹

Plaintiffs carried their moving burden by submitting a copy of the mortgage, the unpaid note and evidence of defendant's default in making the requisite payments due under the note (see Bayview Loan Servicing, LLC v. Freyer, 192 A.D.3d 1421, 1422–1423, 145 N.Y.S.3d 647 [3d Dept. 2021];  SEFCU v. Allegra Holdings, LLC, 148 A.D.3d 1241, 1242, 48 N.Y.S.3d 811 [3d Dept. 2017]).  In view of this, the burden shifted to defendant “to raise a question of fact as to a bona fide defense to foreclosure” (Nationstar Mtge. LLC v. Dessingue, 155 A.D.3d 1152, 1153, 63 N.Y.S.3d 612 [3d Dept. 2017] [internal quotation marks and citations omitted];  see Chase Home Fin., LLC v. Howland, 149 A.D.3d 1405, 1406, 50 N.Y.S.3d 316 [3d Dept. 2017]).

In the opposition to plaintiffs’ motion, counsel for defendant affirmed that the opposition “does not address all the claims raised in defendant's [a]mended [a]nswer.”  Rather, counsel limited the argument therein to the statute of limitations defense raised in support of the cross-motion.  Accordingly, defendant failed to preserve any argument in attempting to raise an issue of fact.  In any event, even if defendant's arguments were properly preserved, we would find that defendant failed to raise an issue of fact as to her affirmative defense of unconscionability (see PHH Mtge. Corp. v. Davis, 111 A.D.3d 1110, 1112, 975 N.Y.S.2d 480 [3d Dept. 2013], lv dismissed 23 N.Y.3d 940, 987 N.Y.S.2d 593, 10 N.E.3d 1148 [2014];  La Salle Bank N.A. v. Kosarovich, 31 A.D.3d 904, 906, 820 N.Y.S.2d 144 [3d Dept. 2006];  see generally Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 12, 537 N.Y.S.2d 787, 534 N.E.2d 824 [1988]) and, assuming they are applicable to this case, laches (see First Fed. Sav. & Loan Assn. of Rochester v. Capalongo, 152 A.D.2d 833, 834, 544 N.Y.S.2d 44 [3d Dept. 1989], lv dismissed 74 N.Y.2d 945, 550 N.Y.S.2d 278, 549 N.E.2d 480 [1989]) and unclean hands (see PHH Mtge. Corp. v. Davis, 111 A.D.3d at 1112, 975 N.Y.S.2d 480).  Defendant's remaining contentions, to the extent properly before us, have been reviewed and are unavailing.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   In her brief, defendant limits the appeal to the granting of plaintiffs’ motion and abandons any arguments related to the denial of the cross-motion.

Aarons, J.P.

Pritzker, Lynch, Fisher and Mackey, JJ., concur.