Motion-Secondary: Fairbridge Real Estate Investment Trust, Llc f/k/a Realfi Real Estate Investment Trust LLC v. Little Falls Garden Apartments Llc, Robinhood Properties L.L.C., Brookview Town House Llc a/k/a Brookview Town Houses LLC, Cor Holdings Llc, David Raven, Carl Orsini a/k/a Carlos M. Orsini, New York State Department Of Taxation And Finance, George Lumber & Building Material Inc., Key Bank as Successor by Merger to First Niagara Bank, N.A., John Doe Nos. 1-100, John Doe Corporation Nos. 1-100 and, John Doe Company Nos. 1-100

On September 13, 2022 a Motion-Secondary was filed involving a dispute between Fairbridge Real Estate Investment Trust, Llc F K A Realfi Real Estate Investment Trust Llc, and Brookview Town House Llc A K A Brookview Town Houses Llc, Carl Orsini A K A Carlos M. Orsini, Cor Holdings Llc, David Raven, George Lumber & Building Material Inc., John Doe Company Nos. 1-100, John Doe Corporation Nos. 1-100 And, Key Bank As Successor By Merger To First Niagara Bank, N.A., Little Falls Garden Apartments Llc, New York State Department Of Taxation And Finance, Robinhood Properties L.L.C., for Real Property - Mortgage Foreclosure - Commercial in the District Court of Montgomery County.

Preview
MON OM PV OUN PK 04 04 DM INDEX NO. EF2022-477
NYSCEF BOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONTGOMERY

FAIRBRIDGE REAL ESTATE INVESTMENT
TRUST, LLC F/K/A_ REALFI REAL ESTATE
INVESTMENT TRUST LLC, Index No.: EF2022-477

Plaintiff,
-against-

LITTLE FALLS GARDEN APARTMENTS LLC,
ROBINHOOD PROPERTIES L.L.C., BROOKVIEW
TOWN HOUSE LLC A/K/A BROOKVIEW TOWN
HOUSES LLC, COR HOLDINGS LLC, DAVID
RAVEN, CARL ORSINI A/K/A CARLOS M. ORSINI,
NEW YORK STATE DEPARTMENT OF TAXATION
AND FINANCE, GEORGE LUMBER & BUILDING
MATERIAL INC., KEYBANK AS SUCCESSOR BY
MERGER TO FIRST NIAGARA BANK, N.A., JOHN
DOE NOS. 1-100, JOHN DOE CORPORATION NOS.
1-100 and JOHN DOE COMPANY NOS. 1-100,

Defendants.

The Names of the “John Doe” Defendants Being
Fictitious and Unknown to Plaintiff, the Persons and
Firms Intended Being Those Who May Be in Possession
or, or May have Possessory, Lien or Other Interests in,
the Premises Herein Described.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT AND ORDER OF REFERENCE

SAHN WARD BRAFF KOBLENZ PLLC
Attorneys At Law
333 Earle Ovington Boulevard, Suite 601
Uniondale, New York 11553
516-228-1300 - 516-228-0038 (Fax)

Of Counsel:

Jon A. Ward, Esq.
Andrew M. Roth, Esq.
John R. Mertz, Esq.

1 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES iM

PRELIMINARY STATEMENT

STATEMENT OF FACTS.........0...

ARGUMENT

PLAINTIFF HAS ESTABLISHED ITS ENTITLEMENT TO SUMMARY JUDGMENT

:
A Defendants Have No Valid Defenses to the Foreclosure of the Mortgaged
Properties

Plaintiff Has Stated a Claim For Which Relief Can Be
Granted ............ 7

Defendants’ Second, and duplicative, Third Affirmative
Defenses, Alleging the Plaintiff Engaged in Culpable
Conduct by Failing to Mitigate or Minimize Damages, are
Meritless..

CONCLUSION.

2 of 15
INDEX NO. EF2022-477
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

TABLE OF AUTHORITIES

Page(s)

Cases

Bank of New York Mellon v. Slavin
156 A.D.3d 1073 (3d Dep’t 2017)
Bank, N.A. v. Nwanganga.
328F. Supp.3d 189 (S.D.N.Y. 2018)
Charter One Bank, FSB y. Leone,
45 A.D.3d 958 (3d Dep’t 2007) 5,7
Citibank, NA y. Abrams,
144 A.D.3d 1212 (3d Dep’t 2016)
Comm'rs of the State of Ins. Fund v. Ramos,
63 A.D.3d 453 (1st Dep’t 2009)
Gustavia Home, LLC vy. Hoyer,
362 F. Supp.3d 71 (E.D.N.Y. 2019) (applying New York law)
Healy v. Amedore Quantum, LLC,
24 Misc.3d 1221
HSBC Bank USA v. Merrill.
37 A.D.3d 899 (3d Dep’t 2007) 5,6
Hypo Holdings, Inc. v. Chalasani
280 A.D.2d 386 (1st Dep’t 2001)
JPMorgan Chase Bank, N.A. v. Verderose.
154 A.D.3d 1198 (3d Dep’t 2017)
Langford v. Cameron,
73 A.D.2d 1001 (3d Dep’t 1980)
LPP Morg. Ltd. v. Card Corp.
17 A.D.3d 103 (1st Dept 2005)
Nastro Contracting Inc. v. Agusta.
217 A.D.2d 874 (3d Dep’t 1995)
PHH Mtge. Corp. v. Davis
11 A.D.3d 1110 (3d Dep’t 2013) 5,6
Pump v. Anchor Motor Freight, Inc.
138 A.D2d 849 (3d Dep’t 1998)
Purdential Home Mortg. Co. v. Cermele,
226 A.D.2d. 357 (2d Dep’t 1996)
Ramrup v. 131 Realty Corp.,
3 Misc. 3d 1106A, *3 (Sup. Ct. Kings Co. 2004).
Robbins v. Growney,
229 A.D.2d 356 (1st Dep’t 1996)...
Schmidt’s Wholesale, Inc. v. Miller & ‘Lehman Const, “Ine.,
173 A.D.2d 1004 (3d Dep’t 1991)...
U.S. Bank N.A. v. Nelson.
36 N.Y.3d 998 (2020)
i

3 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

U.S. Bank National Association v. Ioannides,
192 A.D.3d 1405 (3d Dep’t 2021)...
Rules

CPLR 1411
CPLR 3013
CPLR 3016(b)

ili

4 of 15
INDEX NO. EF2022-477
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

Plaintiff, Fairbridge Real Estate Investment Trust, LLC f/k/a RealFi Real Estate

Investment Trust LLC (“Plaintiff”), respectfully submits this memorandum of law in support of

its motion pursuant to CPLR 3211(b) and 3212 for an order (i) granting summary judgment of

foreclosure and Order of Reference in favor of Plaintiff and against Defendants, Little Falls

Garden Apartments LLC (“Little Falls”), Robinhood Properties L.L.C. (‘Robinhood’),

Brookview Town House LLC a/k/a Brookview Town Houses LLC (“Brookview”), Cor Holdings

LLC (“Cor Holdings”), and David Raven (“Raven”) (collectively, “Defendants”) and (ii)

dismissing all affirmative defenses pleaded in Defendants’ Verified Answer dated March 1, 2023

(the “Answer”) (Exhibit “R”).!

PRELIMINARY STATEMENT

The action at bar is a straight-forward foreclosure of a mortgage held by Plaintiff on

commercial properties located in the Counties of Montgomery, Herkimer and Washington, New

York, owned by Little Falls, Robinhood and Brookview respectively. Plaintiff has established its
.
entitlement to a judgment of foreclosure under New York law by producing a consolidated

mortgage and unpaid consolidated note along with evidence of default on the underlying loan. In

fact, Plaintiff has provided proof, in the form of an affidavit from the managing member of its

sole member, that the borrowers under the subject consolidated note have been in default

thereunder since July 8, 2022, at which time, they failed to remit the total principal indebtedness

and all interest due and owing to the Plaintiff. As a result, on September 13, 2022 Plaintiff

commenced the instant action.

In contrast, Defendants have failed to proffer any facts to contradict Plaintiffs well-

documented account of the mortgage transaction and the borrower’s subsequent default. Instead,

' All exhibits referenced herein are annexed to the affirmation of Andrew M. Roth, Esq. dated April 24, 2023 or the
affidavit of Steven Wissak sworn to the 24" day of April, 2023 (“Wissak Aff.”), submitted herewith.

5 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

Defendants blithely deny any knowledge or information as to the veracity of the facts stated in

Plaintiff's Verified Complaint. (Exhibit “A”). In other words, Defendants’ response appears to

be a stalling tactic designed to prolong the resolution of this action and thus delay the inevitable

foreclosure sale of the subject properties.

Finally, Defendants’ boilerplate defenses provide no basis for overcoming Plaintiffs

prima facie case for summary judgment of foreclosure and the issuance of an Order of

Reference. As a result, Defendants’ affirmative defenses should be dismissed in their entirety.

STATEMENT OF FACTS

This action was brought to foreclose Plaintiff's first priority mortgage lien on the

premises commonly known as 759 East Monroe Street Extension, Little Falls, New York (the

“Little Falls Property’), 60 East Main Street, Mohawk, New York (the “Robinhood Property”),

and 97 Mettowee Street, Granville, New York (the “Brookview Property”) (collectively, the

“Mortgaged Properties”), which are the subject of that certain Mortgage Consolidation,

Modification and Extension Agreement dated as of October 16, 2020 by and between Little

Falls, Robinhood and Brookview, as mortgagors (collectively, the “Mortgagors”), and the

Plaintiff, as mortgagee, on the Mortgaged Properties (the “Consolidated Mortgage”) (Exhibit

“B”). The Consolidated Mortgage secures a loan made by Plaintiff to Little Falls, Robinhood

and Brookview and Defendant, Cor Holdings LLC (“Cor Holdings”) (collectively, “Borrowers”),

in the original principal amount of $2,250,000.00 (the “Loan”), which is evidenced by a

Consolidated Note of even date with the Consolidated Mortgage (the “Consolidated Note”)

(Exhibit “C”).

At the time this action was commenced, Plaintiff was in possession of the Consolidated

Note and Consolidated Mortgage and by way of a duly executed Allonge dated October 13, 2020

6 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

(Exhibit “J’), that certain Consolidated Term Note dated June 20, 2012 in the original

consolidated principal amount of Two Million Three Hundred Thousand ($2,300,000.00) Dollars

made by Robinhood, Little Falls and Brookview in favor of First Niagara Bank, N.A. (“First

Niagara”), to which the Allonge is attached, and remains, to date, the lawful holder thereof. The

above referenced Consolidated Term Note consolidated, amended and replaced the following

promissory notes:

a. promissory note dated as of April 1, 2010 made by Robinhood in favor of Habib
American Bank (“Habib”), in the original principal amount of $680,000.00, as
assigned to First Niagara by allonge dated as of June 19, 2012;

promissory note dated as of April 1, 2010 made by Brookview in favor of Habib
in the original principal amount of $265,000.00, as assigned to First Niagara by an
allonge dated as of June 19, 2012;

promissory note dated as of April 7, 2010 made by Little Falls in favor of Habib
in the original principal amount of $332,367.00, as consolidated with a
promissory note dated as of February 17, 2012 made by Little Falls in favor of
Habib in the original principal amount of $182,865.22 to form a single
consolidated promissory note in the principal amount of $500,000.00 and
assigned to First Niagara by an allonge dated as of June 19, 2012; and

d promissory note dated as of February 17, 2012 made by Little Falls in favor of
Habib in the original principal amount of $100,000.00, as assigned to First
Niagara by an allonge dated as of June 19, 2012.

The Consolidated Note combined and consolidated into a single note the indebtedness

evidenced by a gap note, dated as of October 16, 2020, made by the Borrowers in favor of the

Plaintiff, in the principal sum of $750,000.00 (the “Gap Note”) (Exhibit “I’’), and the

outstanding indebtedness due and owing under the existing notes referenced in the Consolidated

Note (the “Existing Notes”) (see, xhibits “D” through “F” which Existing Notes were duly

assigned to the Plaintiff at the closing of the Loan pursuant to a fully executed Allonge. In

accordance with the terms of the Consolidated Note, the indebtedness evidenced by the Gap

Note and the Existing Notes are consolidated by the Consolidated Note shall be repaid according

7 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

to the terms, covenants and conditions of the Consolidated Note. See, Ex. “C”.

Specifically, the entire outstanding principal balance of the Consolidated Note (in the

sum. of $2,250,000.00), together with all accrued and unpaid interest thereon, became due and

payable on October 8, 2021 (the “Maturity Date”). Jd.

In or about September 2021, the Mortgagor and Plaintiff enter into a Mortgage Extension

Agreement (the “September 2021 Agreement”), pursuant to which, among other things, the

Maturity Date of the Consolidated Note was extended from October 8, 2021, to and including

January 8, 2022. See, Exhibit “L”.

Thereafter, on or about January 10, 2022, the Mortgagor and Plaintiff entered into a

second Mortgage Extension Agreement (the “January 2022 Agreement’), pursuant to which,

among other things, the Maturity Date of the Consolidated Note was further extended from

January 8, 2022 to and including July 8, 2022. See, Exhibit “M”.

However, Borrowers failed to make the payments of all principal indebtedness and all

interest and other monies due and owing under the Consolidated Note on or before July 8, 2022,

as modified by the September 2021 Agreement and the January 2022 Agreement.

Accordingly, by notices dated April 13, 2022 and June 9, 2022, Plaintiff notified

Borrowers of their failure to make the aforesaid payment. See, Exhibit “N”. Thereafter, by

letter dated July 13, 2022, Plaintiff further notified Borrowers of their failure to make aforesaid

payment. See, Exhibit “O”. Undeterred by the Notice of Default, Borrowers failed to remit any

monies to the Plaintiff. Thereafter, in accordance with its rights under the Consolidated

Mortgage and as a matter of law, Plaintiff filed the action at bar seeking, inter alia, a judgment

of foreclosure and the repayment of all amounts due and owing under the Consolidated Note and

Consolidated Mortgage. See, Ex. “A”.

8 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

By Order dated January 17, 2023, this Court appointed Peter Sciocchetti as receiver of

the Mortgaged Properties to, inter alia, collect all rents and profits issuing from the Mortgaged

Properties. See, Exhibit “S”.

Further, on March 23, 2023, the Court approved the Receiver’s retention of a HUD-

approved property management company to act as managing agent of the Little Falls Property.

See, Exhibit “T”.

ARGUMENT

PLAINTIFF HAS ESTABLISHED ITS
ENTITLEMENT TO SUMMARY JUDGMENT

Summary judgment is appropriate here because the facts demonstrating that the Plaintiff

has a right to foreclose are indisputable. A plaintiff establishes its entitlement to summary

judgment in a foreclosure action by producing the subject mortgage and subject unpaid note,

along with evidence of the mortgagor’s default. See, Citibank, NA v. Abrams, 144 A.D.3d 1212,

1214 (3d Dep’t 2016), citing PHH Mige. Corp. v. Davis, 11 A.D.3d 1110, 111 (3d Dep’t

2013)(“Plaintiff, as mortgagee, established its entitlement to summary judgment in this

foreclosure action by submitting the mortgage and unpaid note, along with evidence of default in

payments, which then shifted the burden to defendants to demonstrate by competent and

admissible proof that a defense existed so as to raise a question of fact”), /v. app. dismissed 23

N.Y.3d 940 (2014); Charter One Bank, FSB v. Leone, 45 A.D.3d 958, 958 (3d Dep’t 2007);

HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900 (3d Dep’t 2007) Iv. app. dismissed 8 N.Y.3d

967 (2007); LPP Morg. Ltd. v. Card Corp., 17 A.D.3d 103, 104 (1 Dep’t 2005) accord Hypo

Holdings, Inc. y. Chalasani, 280 A.D.2d 386, 387 (1% Dep’t 2001). A Mortgagor’s default may

be established by an affidavit from a representative of the mortgage with personal knowledge of

the default. See, Charter One Bank, FSB v, Leone, 45 A.D.3d 958, 959 (3d Dep’t 2007) (holding

9 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

that an affidavit from the vice president of the mortgagor’s default division who has personal

knowledge of the alleged defaults was sufficient to establish mortgagor’s default.) Both

requirements are satisfied here as Plaintiff has produced the Consolidated Note (Ex. “C”), and

Consolidated Mortgage (Ex. “B”) and undisputed evidence of the Borrowers’ default.

The Complaint (Ex. “A”) and the Wissak Affidavit plead Borrowers’ default, Plaintiff's

demand letter.and Borrowers’ noncompliance. Plaintiff has thus made out a prima facie case for

foreclosure in this action.

A Defendants Have No Valid Defenses to the
Foreclosure of the Mortgaged Properties

Where, as here, a plaintiff makes a prima facie showing of entitlement to foreclosure, the

burden of proof shifts to the defendant “to establish, through competent and admissible evidence,

the existence of a viable defense to [his] alleged default or a material issue of fact”. U.S. Bank

National Association v. Ioannides, 192 A.D.3d 1405, 1408 (3d Dep’t 2021), quoting JPMorgan

Chase Bank, N.A. v. Verderose, 154 A.D.3d 1198, 1200 (3d Dep’t 2017); Bank of New York

Mellon v. Slavin, 156 A.D.3d 1073, 1075 -1076 (3d Dep’t 2017)(affidavits containing entirely

self-serving and conclusory allegations do not raise issues of fact); PHH Mtge. Corp. v. Davis,

111 A.D.3d at 1111; HSBC Bank USA v. Merrill, 37 A.D.3d at 900.

Affirmative defenses simply stating legal conclusions without a supporting factual basis

warrant dismissal. See, Langford v. Cameron, 73 A.D.2d 1001, 1003 (3d Dep’t 1980)(bare

allegations without any supporting detail, are insufficient to satisfy the pleading requirements of

CPLR 3013 or 3016(b)); Comm'rs of the State of Ins. Fund v. Ramos, 63 A.D.3d 453, 453 (1*

Dep’t 2009) (affirming dismissal of affirmative defense pleaded as a “bare legal conclusion

without supporting facts”); Robbins v. Growney, 229 A.D.2d 356, 358 (1 Dep’t 1996) (“bare

legal conclusions are insufficient to raise an affirmative defense”); see also, CPLR § 3013

10 of 15
INDEX NO. EF2022-477
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

(“Statements in a pleading shall be sufficiently particular to give the court and parties notice of

the transactions, occurrences, or series of transactions or occurrences, intended to be proved and

the material elements of each cause of action or defense.”).

The affirmative defenses asserted in Defendants’ Answer are exactly the kind of bald,

conclusory statements that carry no weight in the determination of a summary judgment motion.

See, e.g. Charter One Bank, FSB v. Leone, 45 A.D.3d at 959 (striking a defense of accord and

satisfaction because defendant offered no competent evidenced in support of such a defense and

“self-serving and conclusory allegations do not raise issues of fact”); Purdential Home Mortg.

Co. v. Cermele, 226 A.D.2d. 357, 357-358 (2d Dep’t 1996) (holding that mortgagor’s “proof,

consisting of bare unsubstantiated contentions... is insufficient to create an issue of fact” for trial

on its affirmative defenses).

Here, each of Defendant’s affirmative defenses is simply a one-sentence recital of legal

doctrine without any accompanying factual basis whatsoever for asserting such a defense.

Defendants cannot avoid summary judgment by relying on the empty assertations contained in

their Answer.

1 Plaintiff Has Stated A Claim For Which Relief Can Be Granted

Defendants’ First Affirmative Defenses alleging that the Complaint fails to state a cause

of action upon which relief may be granted is “harmless surplusage”. See, Pump v. Anchor Motor

Freight, Inc., 138 A.D2d 849, 851 (3d Dep’t 1998). Thus, dismissal is unnecessary. Healy v.

Amedore Quantum, LLC, 24 Misc.3d 1221 (A), *1 (Sup. Ct. Albany Co. 2009), citing, Pump v.

Anchor Motion Freight, Inc., 138 A.D.2d at 851. In any event, the Complaint itself, the Wissak

Aff. and the discussion in Section A of this brief compel the conclusion that the Complaint itself

does indeed state a cause of action for foreclosure. See, Ramrup v. 131 Realty Corp., 3 Misc. 3d

11 of 15
INDEX NO. EF2022-477
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

1106A, *3 (Sup. Ct. Kings Co. 2004) (holding that a mortgage foreclosure complaint states a

cause of action where “[i]t names the parties, the obligation, the default thereon and the remedy

sought”).

Moreover, contrary to Defendants’ First Affirmative Defense, in the Complaint at

paragraph 26, Plaintiff specifically alleges that it “has been and remains in possession of the

Consolidated Note, the Gap Note and the Existing Notes.”

Accordingly, Defendants’ First Affirmative Defense should be disregarded as mere

surplusage and/or dismissed based on Plaintiff having pled a proper, sustainable and valid

foreclosure cause of action.

2. Defendants’ Second, and duplicative, Third Affirmative Defenses,
Alleging that Plaintiff Engaged in Culpable Conduct by Failing to
Mitigate or Minimize Damages, are Meritless

In their Second and Third Affirmative Defenses, Defendants assert that Plaintiff's alleged

damages were caused in whole or in part by Plaintiff's own culpable conduct by failing to

mitigate or minimize the damages alleged. However, neither of these claims has any merit.

First, a culpable conduct defense as defined in CPLR 1411 is not applicable to a

foreclosure action. Rather, it is applicable to actions to recover damages for personal injury,

injury to property or wrongful death.

In any action to recover damages for personal injury, injury to
property, or wrongful death, the culpable conduct attributable to
the claimant or to the decedent, including contributory negligence
or assumption of risk, shall not bar recovery, but the amount of
damages otherwise recoverable shall be diminished in the
proportion which the culpable conduct attributable to the claimant
or decedent bears to the culpable conduct which caused the
damages.

See, CPLR 1411.

Accordingly, the Third Department has held that the defense of culpable conduct is not

12 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 04724/2023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

applicable to foreclosure actions. See, Schmidt’s Wholesale, Inc. v. Miller & Lehman Const.,

Inc., 173 A.D.2d 1004, 1005 (3d Dep’t 1991); see also, Nastro Contracting Inc. v. Agusta, 217

A.D.2d 874, 875 (3d Dep’t 1995) (“Supreme Court correctly dismissed defendant's fourth

affirmative defense because a plaintiff's culpable conduct may not be asserted as a defense to an

action for breach of contract.”)

Because the foreclosure of a mortgage securing a promissory note is a contract action

(see, U.S. Bank N.A. v. Nelson, 36 N.Y.3d 998 (2020) (Wilson, J. concurring)), Defendants’

culpable conduct affirmative defense should properly be dismissed.

Similarly, Defendants’ mitigation affirmative defense must be dismissed as such an

affirmative defense is not a defense to a foreclosure action. See, Gustavia Home, LLC v. Hoyer,

362 F. Supp.3d 71, 89 (E.D.N.Y. 2019) (applying New York law), quoting Citi Bank, N.A. v.

Nwanganga, 328 F. Supp.3d 189, 199 (S.D.N.Y. 2018) (“failure to mitigate damages is not an

affirmative defense to a foreclosure action; rather, a dispute about the exact amount owed by a

mortgagee does not preclude summary judgment directing a foreclosure sale.”)

13 of 15
INDEX NO. EF2022-477
FILED: MONTGOMERY COUNTY CLERK 0472472023 04:56 PM
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

CONCLUSION

For the above stated reasons, Plaintiff respectfully requests that the Court (a) strike

Defendants’ Affirmative Defenses, (b) grant Plaintiff's motion for summary judgment and Order

of Reference, and (c) grant such other relief in favor of Plaintiff and against Defendants as the

Court deems just and equitable.

Dated: Uniondale, New York
April 24, 2023
SAHN WARD BRAFF KOBLENZ PLLC
Co-Attorneys for Plaintiffs, Fairbridge Real Estate

Ae, Le
Investment Trus) LLC fik/a RealFi Real Estate
Investment.

By
Jon AAWard, Esq.
Andrew M. Roth, Esq.
333 Earle Ovington Blvd, Suite 601
Uniondale, New York 11553
(516)-228-1300
LAW OFFICES OF JOHN R. MERTZ
Co-Attorneys for Plaintiff Fairbridge Real Estate
Investment Trust, LLC fik/a Realfi Real Estate
Investment Trust LLC
P.O. Box 7118
The Capitol
Albany, NY 12224-0118

14 of 15
: INDEX NO. EF2022-477
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 04/24/2023

wi ORD COUNT CERTIFICATION PURSUANT TO 22 NYCRR § 202.8- b

In compliance with the word limitation contained in 22 NYCRR § 202.8-b(a)(i), I certify

that the attached Memorandum of Law contains 2,757 words.

CLM [En
ANDREW M. ROTH, ESQ.

15 of 15

Case Info

Judge

Hon. Felix J Catena Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

April 24, 2023

Case Filing Date

September 13, 2022

County

Parties

Brookview Town House LLC a/k/a Brookview Town Houses LLC Defendant
Carl Orsini a/k/a Carlos M. Orsini Defendant
Cor Holdings LLC Defendant
David Raven Defendant
Fairbridge Real Estate Investment Trust, LLC f/k/a Realfi Real Estate Investment Trust LLC Plaintiff
FUSCO, ADAM MICHAEL Attorney for the Plaintiff
George Lumber & Building Material Inc. Defendant
John Doe Company Nos. 1-100 Defendant
John Doe Corporation Nos. 1-100 and Defendant
Key Bank as Successor by Merger to First Niagara Bank, N.A. Defendant
Kimberly Van Wormer, Esq. Non Party
LICKSTEIN, SCOTT A. Attorney for the Defendant
Little Falls Garden Apartments LLC Defendant
MERTZ, JOHN ROGER Attorney for the Plaintiff
New York State Department of Taxation and Finance Defendant
RAGUES, RAYMOND Attorney for the Defendant
Robinhood Properties L.L.C. Defendant
ROTH, ANDREW MICHAEL Attorney for the Plaintiff
VAN WORMER, KIMBERLY A. Attorney
VAN WORMER, KIMBERLY A. Attorney for the Plaintiff
JON WARD Attorney
PETER MOULINOS Attorney
ANA WARD Attorneys for Plaintiffs
KRISHNA SINGH Attorney
ANDREW KOWALCZYK Attorney
AUDREY ROTH Attorneys for Plaintiffs
CAROLINE MCGUIRE Attorney
MICHAEL RATO Attorneys for Plaintiffs
ANDREW MULRAIN Attorney
JOHN ARDITO Attorney
BENJAMIN MCGUIRE Attorney
CATHERINE MCGUIRE Attorney
CHRISTINA MCGUIRE Attorneys for Plaintiffs
MICHAEL SAHN Attorney
PATRICK MARUGGI Attorney
ANDREW KIJ Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Preview

Related Topics

Case Info

Parties