|Bank of N.Y. Mellon v Arthur|
|2015 NY Slip Op 01392 [125 AD3d 492]|
|February 17, 2015|
|Appellate Division, First Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
| The Bank of New York Mellon, Formerly Known as
The Bank of New York, as Successor to JP Morgan Chase Bank, N.A.,
Keith Arthur, Appellant, et al., Defendants.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for appellant.
Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for respondent.
Orders, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 24, 2013, and November 27, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on its mortgage foreclosure claim and to dismiss defendant's affirmative defenses and counterclaims, and denied defendant's cross motion for summary judgment, unanimously affirmed, without costs.
Contrary to plaintiff's argument, the arguments raised by defendant for the first time on appeal may be considered since the issues raised are determinative and present purely legal arguments without raising new facts (Seldon v Allstate Ins. Co., 107 AD3d 424 [1st Dept 2013]; Facie Libre Assoc. I, LLC v SecondMarket Holdings, Inc., 103 AD3d 565 [1st Dept 2013], lv denied 21 NY3d 866 ). Having considered these arguments, we find that the motion court properly found that plaintiff established its prima facie right to foreclosure by producing the note, mortgage and undisputed evidence of nonpayment (see 71 Clinton St. Apts. LLC v 71 Clinton Inc., 114 AD3d 583, 584 [1st Dept 2014]; Red Tulip, LLC v Neiva, 44 AD3d 204, 209 [1st Dept 2007], lv dismissed 10 NY3d 741 ), and that, in opposition, defendant failed to raise a triable issue regarding his affirmative defenses and counterclaims. Defendant failed to establish a triable issue regarding plaintiff's standing based on improper indorsement or physical delivery of the loan documents, or plaintiff's notice to defendant pursuant to Real Property Actions and Proceedings Law § 1304. Concur—Gonzalez, P.J., Acosta, Saxe, Manzanet-Daniels and Clark, JJ. [Prior Case History: 2013 NY Slip Op 32625(U).]