GOLDEN LEAVES MANAGEMENT NY INC v. JW REALTY HOLDINGS LLC (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated August 22, 2023.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the defendants’ second affirmative defense and second counterclaim, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In December 2022, the plaintiff commenced this action against the defendants, JW Realty Holdings, LLC, and Joseph Weiner, to foreclose a mortgage on certain commercial property located in Woodbury.  In May 2023, the plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendants’ second affirmative defense and second counterclaim, and for an order of reference.  The defendants opposed the motion.  In an order dated August 22, 2023, the Supreme Court, among other things, granted those branches of the motion.  The defendants appeal.

The plaintiff established its prima facie entitlement to judgment as a matter of law by producing copies of the mortgage agreement, the unpaid debt, and evidence of default (see Globe Trade Capital, LLC v. Hoey, 199 A.D.3d 764, 766, 158 N.Y.S.3d 132;  U.S. Bank N.A. v. Mezrahi, 169 A.D.3d 952, 953, 94 N.Y.S.3d 611;  Deutsche Bank Natl. Trust Co. v. Abdan, 131 A.D.3d 1001, 1002, 16 N.Y.S.3d 459).  Since the plaintiff satisfied its burden of establishing its prima facie entitlement to judgment as a matter of law, “the burden then shifted to defendants to demonstrate lack of consideration as a defense” (Carlin v. Jemal, 68 A.D.3d 655, 656, 891 N.Y.S.2d 391;  see Di Marco v. Bombard Car Co., Inc., 11 A.D.3d 960, 783 N.Y.S.2d 183).

Here, Weiner alleged in a conclusory manner that he never received the monies that the plaintiff alleged were lent, but he failed to offer any evidence to substantiate that allegation, which was insufficient to raise a triable issue of fact concerning lack of consideration (see Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259, 309 N.Y.S.2d 341, 257 N.E.2d 890;  Cenlar FSB v. Tenenbaum, 172 A.D.3d 806, 101 N.Y.S.3d 68;  Carlin v. Jemal, 68 A.D.3d at 656, 891 N.Y.S.2d 391).  Moreover, the defendants’ concession that the plaintiff accepted monthly payments for nearly six years after the alleged default was inconsistent with the position that the loan was never funded, especially “where, as here, the note is ‘clear, complete and unambiguous’ on its face and recites that it was executed for value” (Carlin v. Jemal, 68 A.D.3d at 656–657, 891 N.Y.S.2d 391, quoting Di Marco v. Bombard Car Co., Inc., 11 A.D.3d at 961, 783 N.Y.S.2d 183).  Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the defendants’ second affirmative defense and second counterclaim, and for an order of reference.

DILLON, J.P., BRATHWAITE NELSON, WARHIT and LOVE, JJ., concur.