*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 479

CA 15-01793

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ. GDH CONSTRUCTION INC., PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER MARK A. GUGINO, LINDA M. GUGINO,

DEFENDANTS-RESPONDENTS,

ET AL., DEFENDANTS.

FREID AND KLAWON, WILLIAMSVILLE (WAYNE I. FREID OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BRAUTIGAM & BRAUTIGAM, LLP, FREDONIA (DARYL P. BRAUTIGAM OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. Appeal from an order of the Supreme Court, Chautauqua County (Deborah A. Chimes, J.), entered January 9, 2015. The order granted the motion of defendants Mark A. Gugino and Linda M. Gugino for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this mortgage foreclosure action, plaintiff appeals from an order that granted the motion of Mark A. Gugino and Linda M. Gugino (defendants) for summary judgment dismissing the complaint. Plaintiff contends that defendants’ motion should have been denied as premature pursuant to CPLR 3212 (f) because further discovery was necessary. We reject that contention. Because the note and mortgage were a nullity “the discovery sought would [not] produce evidence sufficient to defeat the motion” ( Resetarits Constr. Corp. v Elizabeth Pierce Olmstead, M.D. Center for the Visually Impaired [appeal No. 2], 118 AD3d 1454, 1456). Plaintiff’s contention that defendants’ motion should be denied on equitable grounds is raised for the first time on appeal and thus is not properly before us ( see Ciesinski v Town of Aurora , 202 AD2d 984, 985).

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court