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Prudential Insurance Co. of America v. Hamilton Plaza Co.

209 A.D.2d 498 Court N.Y. App. Div. Decision date 1994-11-14 English

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p. 498
Prudential Insurance Company of America, Respondent, v Hamilton Plaza Company, Inc., et al., Appellants, et al., Defendants.
[619 NYS2d 608]

—In a consolidated action to foreclose mortgages, the defendants Hamilton Plaza Company, Inc., and Pappas Enterprises, Inc., appeal from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered July 10, 1992, as granted the plaintiff’s motion for summary judgment and dismissed their affirmative defenses and counterclaims.

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

The plaintiff established prima facie entitlement to summary judgment in its consolidated action to foreclose on the mortgages given by the appellant Hamilton Plaza Company, Inc. (hereinafter Hamilton), by offering proof of the existence of the mortgages as well as proof of Hamilton’s failure to make the monthly payments as required by the loan documents (see, European Am. Bank v Strab Constr. Corp., 196 AD2d 479 ; Silber v Muschel, 190 AD2d 727 ). To preclude the plaintiff from foreclosing on the mortgages, it became incum

p. 499
bent upon the appellants to establish, by admissible evidence, that a triable issue of fact existed (see, Dime Sav. Bank v Rand, 204 AD2d 261 ), which they failed to do. We find no evidentiary support in the record for the appellants’ allegations that a "pass-through” provision in a subordination and intercreditor agreement between the plaintiff and Manufacturers Hanover Trust Company prevented Hamilton from obtaining additional financing for debt service on the plaintiff’s loans, thereby causing Hamilton’s default. We also find no support in the record to sustain the appellants’ affirmative defenses or counterclaims.

We have reviewed the appellants’ remaining contentions and find them to be without merit. Balletta, J. P., Pizzuto, Altman and Hart, JJ., concur.

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