GE CAPITAL MORTGAGE SERVICES INC v. MITTELMAN (1997)

In an action to foreclose a mortgage, the defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Orange County (Owen, J.), dated November 29, 1995, which, inter alia, granted the plaintiff's motion for summary judgment and, in effect, denied their motion to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order is modified by deleting the provisions thereof which granted those branches of the plaintiff's motion which were (1) for summary judgment on the complaint, (2) to dismiss the defendants' answer, and (3) to appoint a referee, and substituting therefor a provision denying those branches of the plaintiff's motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

 The Supreme Court improperly granted summary judgment to the plaintiff.   As the moving party, the plaintiff had the burden to come forward with evidence in admissible form showing that it is entitled to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The plaintiff failed to proffer evidence sufficient to prove that it complied with the condition precedent contained in paragraph 19(B) of the mortgage agreement which required that it give the defendants 30-days notice prior to demanding full payment of the loan in the event of the defendants' default (see, General Elec. Co. v. Kessler, 131 A.D.2d 634, 516 N.Y.S.2d 945).

 The defendants waived the defense of lack of personal jurisdiction by asserting counterclaims unrelated to the plaintiff's action (see, Textile Technology Exch. v. Davis, 81 N.Y.2d 56, 595 N.Y.S.2d 729, 611 N.E.2d 768).

The Supreme Court properly dismissed the defendants' counterclaims.

The defendants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.