Coppa v Fabozzi
2004 NY Slip Op 02338 [5 AD3d 718]
March 29, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 26, 2004

Marguerite Coppa, Respondent,
Paul Fabozzi, Appellant, et al., Defendant.

In an action to foreclose a mortgage, the defendant Paul Fabozzi appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated April 15, 2003, as granted those branches of the plaintiff's motion which were for summary judgment and to dismiss the counterclaim.

Ordered that the order is affirmed insofar as appealed from, with costs.

The mortgagee established her entitlement to judgment as a matter of law by presenting the mortgage, the unpaid mortgage note, and an affidavit attesting to the mortgagors' default (see EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002]; Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 559 [1997]). The affirmative defenses raised by the mortgagor are unfounded and, thus, were properly stricken by the Supreme Court (see Fabozzi v Coppa, 5 AD3d 722 [2004]).

Moreover, the Supreme Court properly granted that branch of the motion which was to dismiss the counterclaim because it, too, was without merit, since another action between substantially the same parties involving the same cause of action was pending (see CPLR 3211 [a] [4]; Fabozzi v Coppa, supra). Ritter, J.P., Goldstein, Townes and Crane, JJ., concur.