Deutsche Bank Natl. Trust Co. v. Desilva

Deutsche Bank Natl. Trust Co. v Desilva (2019 NY Slip Op 06872)

Deutsche Bank Natl. Trust Co. v Desilva

2019 NY Slip Op 06872

Decided on September 26, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 26, 2019
Friedman, J.P., Renwick, Tom, Gesmer, Oing, JJ.

9932 850251/13

[*1]Deutsche Bank National Trust Company, etc., Plaintiff-Respondent,

v

Anthony Craig Desilva also known as Anthony De Silva, Defendant-Appellant, Washington Mutual Bank, FA, et al., Defendants.

Mark M. Horowitz, Great Neck, for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains (Sarah J. Greenberg of counsel), for respondent.

Order, Supreme Court, New York County (Judith N. McMahon, J.), entered on or about May 8, 2018, which granted plaintiff's motion for summary judgment on its mortgage foreclosure claim, unanimously affirmed, without costs.

Plaintiff established prima facie its right to foreclosure by submitting the unpaid note, the mortgage, and defendant's answer in which he does not dispute his failure to pay and the plaintiff's service on him of the notice required by RPAPL 1304 (see Bernstein v Dubrovsky, 169 AD3d 410 [1st Dept 2019]). Contrary to plaintiff's contention, defendant Desilva's failure to plead affirmative defenses in his answer did not preclude him from raising them in opposition to summary judgment if he

submitted documents which raised questions of fact (JP Morgan Chase Bank, N.A. v. Salmon, 154 AD3d 603 [1st Dept 2017]); however, he failed to do so.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 26, 2019

CLERK