Full text
FFCA Acquisition Corporation v. PB Victor, Inc.
—Appeal from an order of Supreme Court, Ontario County (Harvey, J.), entered September 13, 2001, which, inter alia, granted plaintiffs motion seeking summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiffs motion in part, reinstating defendant’s fourth and fifth affirmative defenses and vacating the third, fourth and fifth ordering paragraphs and as modified the order is affirmed without costs. - Memorandum: Supreme Court erred in granting in its entirety plaintiffs motion seeking summary judgment in this foreclosure action.
Plaintiff failed to submit evidentiary proof in admissible form establishing that it served PB Victor, Inc. 912 (defendant) with a notice of default pursuant to the terms of the subordination agreement and thus failed to meet its initial burden of establishing its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562; cf. Matter of Cruz v Wing, 276 AD2d 307, lv denied 96 NY2d 702; Yong Gon Cha v Warwick Hotel, 272 AD2d 154, 154-155; East Riv. Sav.
Bank v Curtis, 229 AD2d 999). We note that, in the event that it is determined that the notice of default was not properly served, the court must then determine the effect of the failure to serve such notice (see generally Phoenix Acquisition Corp. v Campcore, Inc., 81 NY2d 138, 144). We further note that, contrary to defendant’s contention, the subordination agreement does not expressly prohibit any amendments to the original note and mortgage without the prior written consent of defendant.
In any event, even assuming, arguendo, that any such amendments are prohibited, we conclude that the instant foreclosure action would not be affected thereby. We therefore modify the order by denying plaintiff’s motion in part, reinstating defendant’s fourth and fifth affirmative defenses and vacating the third, fourth and fifth ordering paragraphs. Present — Green, J.P., Hayes, Hurlbutt, Gorski and Lawton, JJ.