Case Information

WILMINGTON TRUST, Respondent, v RAGOBAR SUKHU, Also Known as RAGOBAR D. SUKHU, Appellant, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department

63 N.Y.S.3d 853

Orders, Supreme Court, New York County (Debra A. James, J.), entered May 20, 2016, which, respectively, granted plaintiff summary judgment on its mortgage foreclosure claim, and denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff established its prima facie entitlement to mortgage foreclosure as a matter of law, by producing the note, mortgage, assignment, and evidence of defendant's nonpayment, and defendant failed to raise a triable issue as to a defense (Wall St. Mtge. Bankers v Gonzalez, 126 AD3d 602 [1st Dept 2015]; Horizons Invs. Corp. v Brecevich, 104 AD3d 475 [1st Dept 2013]).

Defendant waived his right to assert a defense based on plaintiff's alleged failure to provide 30 days' written notice of default, because he failed to assert it as an affirmative defense in his answer and failed to timely raise it in response to plaintiff's motion for summary judgment (Signature Bank v Epstein, 95 AD3d 1199, 1200-1201 [2d Dept 2012]; see also CPLR 3015, 3018 [b]). Defendant was precluded from raising his contractual notice defense for the first time in his order to show cause to dismiss the complaint, which was in fact a motion to reargue (Matter of Setters v AI Props. & Devs. [USA] Corp., 139 AD3d 492 [1st Dept 2016]).

We have considered the remaining arguments and find them unavailing. Concur—Renwick, J.P., Manzanet-Daniels, Mazzarelli, Kahn and Moulton, JJ.