State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519049 

________________________________

WELLS FARGO BANK, N.A.,

Respondent,

v

MEMORANDUM AND ORDER

ANTHANASIOS VASILIOU,

Individually and as

Administrator of the Estate

of VASILIOS VASILIOU, Also

Known as BILL VASILIOU,

Deceased, et al.,

Appellants,

et al.,

Defendants.

________________________________

Calendar Date: February 19, 2015

Before: Peters, P.J., McCarthy, Rose and Clark, JJ.

__________

Athanasios Vasiliou, Windham and Xanthi VasiliouParaskakis, Hicksville, appellants pro se.

Hogan Lovells US, LLP, New York City (Heather R. Gushue of

counsel), for respondent.

__________

Rose, J.

Appeal from an order of the Supreme Court (Elliott III,

J.), entered February 6, 2014 in Greene County, which, among

other things, granted plaintiff's cross motion for summary

judgment.

Plaintiff commenced this action following the death of

Vasilios Vasiliou (hereinafter decedent) seeking foreclosure on a
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note secured by a home equity conversion mortgage, commonly known

as a reverse mortgage, on real property owned by decedent in the

Town of Windham, Greene County. As is relevant herein,

decedent's children, defendants Anthanasios Vasiliou and Xanthi

Vasiliou-Paraskakis (hereafter collectively referred to as

defendants), answered and raised three affirmative defenses. 

Following the denial of their motion to dismiss the complaint

based upon the affirmative defenses, defendants moved to compel

discovery and plaintiff cross-moved for, among other things,

summary judgment. Supreme Court, among other things, granted

plaintiff's summary judgment motion, dismissed defendants' answer

and appointed a referee to ascertain the loan amount due. 

Defendants now appeal.

Defendants contend that summary judgment was premature as

further discovery was necessary in order to determine whether the

loan was ever funded or is, in fact, fraudulent. We do not

agree. In support of its summary judgment motion, plaintiff

submitted the mortgage and note, which, admittedly, was executed

by Vasiliou-Paraskakis pursuant to a 2003 durable power of

attorney. Although defendants contend that Vasiliou-Paraskakis

was unaware that she was signing a mortgage note, the power of

attorney specifically appointed her to act as decedent's

attorney-in-fact in real estate transactions and "enter[] into a

Home Equity Conversion Mortgage with [plaintiff]." The executed

note and mortgage, together with proof of decedent's death which,

pursuant to the terms of the loan, rendered the loan to be in

default, establish plaintiff's entitlement to summary judgment. 

Defendants thereafter failed to meet their burden of coming

forward with competent or admissible evidence demonstrating the

existence of any defense that could raise a triable issue of fact

(see Community Bank, N.A. v Naito, 118 AD3d 1181, 1182 [2014];

HSBC Bank USA v Merrill, 37 AD3d 899, 900 [2007], lv dismissed 8

NY3d 967 [2007]). The record establishes that, in connection

with a prior motion to dismiss the complaint, Supreme Court had

found the affirmative defenses asserted in defendants' answer to

be without merit. To the extent that defendants alleged that

discovery could lead to evidence of fraud by plaintiff, it is

well settled that "[a]llegations of mere hope that the discovery

will reveal something helpful . . . provide no basis for

postponing the determination" of a summary judgment motion (Bryan
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v City of New York, 206 AD2d 448, 449 [1994]; see HSBC Bank USA,

N.A. v Sage, 112 AD3d 1126, 1128 [2013], lvs dismissed 22 NY3d

1172 [2014], 23 NY3d 1015 [2014]). Under these circumstances, we

find that Supreme Court properly granted plaintiff's cross motion

for summary judgment, and defendants' remaining contentions,

including their challenges to the validity of the power of

attorney, are without merit or are raised for the first time on

appeal and, thus, not properly before us.

Peters, P.J., McCarthy and Clark, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court