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MARGUERITE COPPA, respondent, v. PAUL FABOZZI, appellant, ET AL., defendant.

DECISION ORDER

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 Mtg. Corp. v. Riverdale Assoc., 291 A.D.2d 370; Federal Home Loan Mtge. Corp. v. Karastathis, 237 A.D.2d 558, 559). The affirmative defenses raised by the mortgagor are unfounded and, thus, were properly stricken by the Supreme Court ( see Fabozzi v. Coppa, A.D.3d [Appellate Division Docket No. 2003-01199; decided herewith]).

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.

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COPPA v. FABOZZI
(Mar 29, 2004)