        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1053
CA 14-01874
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


WELLS FARGO BANK, N.A., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DONALD ALESSI AND ROSEMARY A. ALESSI,
DEFENDANTS-APPELLANTS.


SARGENT & COLLINS, WILLIAMSVILLE (RICHARD G. COLLINS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

HOGAN LOVELLS US LLP, NEW YORK CITY (GABRIELLE B. RUDA OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered March 29, 2014. The order granted the motion
of plaintiff for summary judgment, dismissed the counterclaims of
defendants and granted plaintiff judgment in the amount of
$210,162.57.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to collect the
outstanding principal and interest due under a home equity line of
credit agreement executed by defendants as part of a transaction for
the purchase of improved real estate in Florida. Although the
transaction included a security instrument in the form of a mortgage
lien, plaintiff elected to proceed at law with this action on the debt
following defendants’ default in payment (see generally RPAPL 1301;
Wyoming County Bank & Trust Co. v Kiley, 75 AD2d 477, 480). Plaintiff
thereafter moved for summary judgment on the amended complaint and
sought dismissal of the counterclaims, and defendants opposed the
motion and cross-moved for summary judgment on their counterclaims.
The parties conceded that no questions of fact exist and sought
judicial resolution on the basis of their submissions on the motion
and cross motion (see G. B. Kent & Sons v Helena Rubinstein, Inc., 47
NY2d 561, 565; Admiral Ins. Co. v Marriott Intl., Inc., 79 AD3d 572,
577, lv denied 17 NY3d 708). Supreme Court granted plaintiff’s
motion, directing that judgment be entered against defendants in the
sum of $210,162.57 and dismissing defendants’ counterclaims. We
affirm.

     Plaintiff met its initial burden by submitting the note and
evidence that defendants failed to make payments required by its terms
                                 -2-                          1053
                                                         CA 14-01874

(see Gateway State Bank v Shangri-La Private Club for Women, 113 AD2d
791, 791-792, affd 67 NY2d 627; Harvey v Agle, 115 AD3d 1200, 1200).
“It was then incumbent on the defendants to come forward with proof of
evidentiary facts showing the existence of a triable issue of fact
with respect to a bona fide defense” (Gallagher v Kazmierczuk, 245
AD2d 418, 418). We reject defendants’ contention that the home equity
line of credit agreement, read alone or in conjunction with the
mortgage, is a “nonrecourse” loan and that plaintiff’s remedy is
limited thereby to an action to foreclose the mortgage. There is no
language in the agreement or the mortgage that establishes that it was
the intention of the parties that plaintiff’s “only recourse in
connection with the underlying loan was the mortgaged property”
(Bronxville Knolls v Webster Town Ctr. Partnership, 221 AD2d 248, 248;
cf. Adams v Fountains Senior Props. of N.Y., Inc., 38 AD3d 804, 805).

     Contrary to defendants’ further contention, we conclude that the
real estate appraisal plaintiff obtained as part of its own loan
underwriting protocol cannot provide a basis for defendants’
affirmative defense that they detrimentally relied upon a fraudulently
inflated appraisal in executing the loan and mortgage documents (see
Newman v Wells Fargo Bank, N.A., 85 AD3d 435, 435). It is well
settled that appraisals are generally not actionable under a theory of
fraud or fraudulent inducement because such representations of value
are matters of opinion upon which there can be no basis for
detrimental reliance (see Brang v Stachnik, 235 App Div 591, 592, affd
261 NY 614; Ellis v Andrews, 56 NY 83, 85-87; Stuart v Tomasino, 148
AD2d 370, 371; see also Newman, 85 AD3d at 435).




Entered:   November 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
