ING Real Estate Finance (USA) LLC v. Park Avenue Hotel Acquisition, LLC

Nov 10, 2011
Versions:89 A.D.3d 506
933 N.Y.2d 217

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 AD3d 613 [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 AD2d 932, 934-935 [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. Concur — Saxe, J.P., Sweeny, DeGrasse, Manzanet-Daniels and Román, JJ.