Plaintiff moves for an order, pursuant to CPLR 3212, granting him summary judgment against the defendants, Edward M. Covelli, Jr. and Rita Barra Covelli. The Covelli defendants (hereinafter defendants) cross-move for an order, pursuant to CPLR 3408, staying the action pending completion of a settlement conference. Defendants also seek sanctions, attorney's fees and costs and disbursements.

On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).Plaintiff herein establishes its prima facie entitlement to judgment as a matter of law by presenting the mortgage, the unpaid note, the assignment thereof and evidence of defendants' default (see North Bright Capital, LLC v. 705 Flatbush Realty, LLC, 66 AD3d 977 [2nd Dept 2009] JP Morgan Chase Bank, N.A. v. Agnello, 62 AD3d 662 [2nd Dept 2009] U.S. Bank Natl. Assn. TR U/ S 6/01/98 v. Alvarez, 49 AD3d 711 [2nd Dept 2008]).Since plaintiff has made a prima facie showing of [*2]entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 NY2d 557 [1980]), defendants must show that genuine triable issues of material fact exist in order to defeat plaintiff's motion (id.).In opposition and in support of their cross-motion, defendants indicate that, pursuant to CPLR 3408, this matter must be transferred back to the foreclosure settlement part for "a good faith settlement process." Defendants indicate that: plaintiff refused to extend the mortgage loan; the plaintiff should be required to comply with the HAMP program; and the Court Attorney Referee failed to require good faith negotiations. Here, the plaintiff's company, Bilrite Construction Corp. (Bilrite), is a company in the business of selling homes, not a financial institution which merely provides loans to its consumers. Bilrite took back a short term purchase money note and mortgage as part payment of the purchase price for the home that the company built for the defendants. The term of the purchase money note and mortgage was initially three years maturing on February 1, 2012. The defendants could not pay the debt as agreed by February 1, 2012, and the parties agreed that the maturity date was to be extended by the plaintiff for a further period, i.e. July 1, 2013, with an option to extend the maturity date for an additional one year period, i.e, July 1, 2014, upon the condition that the defendants pay the mortgage debt down by Fifteen Thousand Dollars ($15,000.00) prior to July 1, 2013. Defendants did not make the Fifteen Thousand Dollar ($15,000.00) payment so the mortgage debt became due in full on July 1, 2013. Defendants failed to make this payment. Despite their failure, plaintiff offered another extension of the loan until January 1, 2016 to pay the balance due. The defendants refused to agree to the additional extension and instead counter-offered that the plaintiff extend the term of the purchase money note for a period of twenty-three (23) years. Plaintiff then commenced this action. The aforementioned scenario was allegedly rehashed in front of the Court Attorney Referee, who in turn released the action from the Foreclosure Settlement Conference Part to this Court.Nothing in CPLR 3408 requires plaintiff to make the exact offer desired by the defendants, and the plaintiff's failure to make that offer cannot be interpreted as a lack of good faith (see Bank of America, Nat. Ass'n v. Lucido, 114 AD3d 714 [2nd Dept 2014]).

Here, the defendants have failed to present evidence that plaintiff has engaged in bad faith negotiation. The parties amended their initial agreement on multiple occasions to accommodate the defendants. Additionally, the parties participated in a Settlement Conference on January 14, 2014. Nothing in the record establishes that plaintiff failed to negotiate in good faith, rather the record indicates that plaintiff refused to acquiesce to the "deal" defendants wanted and now defendants allege that this failure is bad faith.

Defendants also indicate that the motion must be denied, pursuant to CPLR 3212(f), as discovery remains outstanding. The mere hope and speculation that discovery might uncover evidence to raise a triable issue of fact is insufficient to defeat a summary judgment motion (see Ordonez v. Levy, 19 AD3d 385 [2nd Dept 2005]).

Based upon the foregoing, plaintiff's motion for summary judgment is granted in its entirety. Defendants' cross-motion is denied in its entirety. Plaintiff is directed to submit judgment on seven (7) days notice consistent with the foregoing within thirty (30) days hereof.

The foregoing constitutes the decision and order of this Court.Dated:June 5, 2014

HON. JAMES D. PAGONES, A.J.S.C.