In March 2007, defendant Carlos Aguirre obtained a loan from plaintiff, in the principal amount of $1.6 million, for the purpose of demolishing his house on the real property known as 23-81 89th Street, East Elmhurst, New York, 23-83 89th Street, East Elmhurst, New York, and 24-01 89th Street, East Elmhurst, New York (collectively, the subject property), and constructing three two-family houses thereon. Defendant Aguirre executed a building loan agreement, a mortgage note (first note) and mortgage (first mortgage), pledging the property to be improved as collateral. Under the building loan agreement, a portion of the loan proceeds were to be disbursed in several advances at such times and in such amounts as plaintiff determined in accordance with the procedures set forth therein.

Defendant Aguirre also entered into an assignment of leases and rents with plaintiff as security for the loan, and a "Cash Collateral and Interest Reserve Agreement" (first reserve agreement) dated March 30, 2007, in which he agreed to pledge the sum of $140,529.39 of the total loan proceeds to establish a reserve (first reserve), which would be used to supplement monthly payments of interest, principal, taxes and insurance due and owing under the terms of the note and mortgage commencing April 1, 2007 and continuing monthly until the first reserve was depleted. The first reserve agreement required, among other things, that the Borrower be responsible for the remainder of all payments due under the note and mortgage.

Thereafter, on March 4, 2008, pursuant to a "Note and Mortgage Modification Agreement" (modification agreement) the parties modified the interest rate of the first mortgage note, and extended its maturity date from April 1, 2008 to April 1, 2009. As consideration for the modification, defendant Aguirre executed a "GENERAL RELEASE" (release), in English and in Spanish versions in favor of plaintiff. The release provided that defendant Aguirre released all claims against plaintiff:

"from the beginning of the world to the date of this RELEASE,

including without limitation, any and all claims of [defendant Aguirre] in [*2]connection with [the note] in the principal sum of $1,600,000.00 secured by a Building Loan Mortgage and Security Agreement and other loan documents, each dated as of March 30, 2007, between [defendant Aguirre] and [plaintiff]." (emphasis in the original)

Defendant Aguirre also entered into another "Cash Collateral and Interest Reserve Agreement" (second reserve agreement) on March 4, 2008, whereby he pledged the amount of $77,840.32 to plaintiff. Under the second reserve agreement, the second reserve was to be used (1) upon depletion of the first reserve, and applied to the payment of all amounts due and owing under the first mortgage loan for monthly payments of principal, interest, taxes and insurance, and (2) commencing on May 1, 2008 and continuing monthly until the second reserve was depleted, to pay the sum equal to all amounts due and owing under the second mortgage loan for monthly payments of principal, interest, taxes and insurance. The second reserve agreement provided, among other things, that the Borrower be responsible for the remainder of all payments due under the second note and second mortgage.

On August 13, 2009, plaintiff sent defendant Aguirre written notices that the subject mortgages had matured on April 1, 2009, and demanded that the entire balance of the loans, plus interest, be paid on or before August 26, 2009. When payment was not forthcoming, plaintiff commenced this foreclosure action on September 30, 2009.

In its complaint, plaintiff alleges that defendant Aguirre defaulted under the terms of the loan documents by failing to pay the indebtedness in full on April 1, 2009, the date of maturity under the first note and mortgage as modified, and the second note and mortgage.

Defendant Aguirre originally served an answer, appearing pro se, denying the material allegations of the complaint, and asserting various affirmative defenses. Defendant Aguirre thereafter obtained counsel, and served an amended answer, denying allegations of the complaint, asserting various affirmative defenses, and interposing three counterclaims. Defendant Aguirre seeks compensatory and punitive damages. Plaintiff served a reply to defendant Aguirre's counterclaims, asserting various affirmative defenses. Defendants Shun Ping Wen and Kenneth Wu served a joint answer, denying the allegations of the complaint. The remaining defendants have not appeared or answered the complaint.

Plaintiff moves for summary judgment against defendant Aguirre, to strike the answer and affirmative defenses of defendant Aguirre, for leave to appoint a referee to compute the sums due and owing plaintiff, to discontinue the action against defendants Shun Ping Wen, Kenneth Wu, Jose E. Jimenez, Sr., Jose Jimenez, Jr. and Maglay Jimenez without prejudice to the prior proceedings, and for leave to amend the caption to reflect the correct name of defendant V & P Plumbing and Heating, Inc. and to excise reference to defendants "John Doe No.1" through [*3]"John Doe #12." Defendant Aguirre opposes the motion and cross-moves to disqualify Kriss & Feuerstein LLP, and Jerold Feuerstein, Esq., as counsel for plaintiff and compel plaintiff to produce certain documents. Plaintiff opposes the cross motion.

In support of his cross motion, and opposition to plaintiff's motion, defendant Aguirre asserts he purchased the subject property in 1997 as his primary residence. He also asserts that in March 2007, at a time when he owed approximately $520,000.00 in outstanding principal on mortgages on his home, he was "steered" by plaintiff into financing the planned construction project by means of the first mortgage loan. According to defendant Aguirre, in doing so, plaintiff took advantage of his limited ability to speak and write English, his lack of relevant experience as a general contractor, and his underestimation of the cost of construction. Defendant Aguirre further asserts that he was fraudulently induced into entering into the first mortgage transaction as a result of plaintiff's misrepresentations, and predatory and high pressure tactics.

Defendant Aguirre contends that for a period of 10 months following the closing of the first mortgage loan, plaintiff improperly refused to release the construction funds to him, notwithstanding his efforts to satisfy plaintiff's various demands. Defendant Aguirre also contends that plaintiff conditioned disbursement of any construction funds upon his signing a release. Defendant Aguirre that plaintiff's demand for a release was prompted by his having filed, on May 25, 2007, a complaint with the United States Department of the Treasury, Office of Thrift Supervision (OTS), regarding plaintiff's alleged unscrupulous conduct relative to the origination and closing of the first mortgage loan.^[FN1]

Defendant Aguirre contends that during the 10 month period following the closing, plaintiff continued to charge him with interest on the first mortgage loan against the reserve and threatened foreclosure in retaliation for his filing the OTS complaint. Defendant Aguirre asserts that it was not until he executed the release, while under economic duress, that plaintiff began to disburse the construction funds to him. Defendant Aguirre also asserts that plaintiff gave him insufficient time to cure his default in failing to pay the mortgage debts upon maturity, and has failed to account to him with respect to the use of the reserve funds. It is defendant Aguirre's [*4]claim that plaintiff intended from the outset to deprive him of his ownership interest in the subject premises.

With respect to that branch of the cross motion by defendant Aguirre to disqualify Kriss & Feuerstein LLP, and Jerold Feuerstein, Esq. as counsel for plaintiff, defendant Aguirre asserts that Jerold Feuerstein, Esq. is a "material witness" relative to Aguirre's defenses and counterclaims because Mr. Feuerstein was present at the closing of the first mortgage loan transaction, and "privy" to numerous letters "presented" by defendant Aguirre. Defendant Aguirre also asserts that Kriss & Feuerstein LLP and Jerold Feuerstein, Esq. should not be permitted to give evidence, or submit an affirmation in support of the motion, because of "non-waivable direct conflicts of interests issues."

To the extent defendant Aguirre seeks to disqualify Kriss & Feuerstein LLP and Jerold Feuerstein, Esq. from representing plaintiff, a party's right to counsel of its choosing is a valued right that should not be abridged absent a clear showing that disqualification is warranted (S & S Hotel Ventures L.P. v 777 S.H. Corp., 69 NY2d 437, 443, 445 [1987]; Goldstein v Held, 52 AD3d 471, 472 [2008]).

Defendant Aguirre makes no allegation or showing that an attorney-client relationship exists, or ever existed, between him and Kriss & Feuerstein LLP or Jerold Feuerstein, Esq. Therefore, defendant Aguirre has failed to demonstrate any conflict of interest exists between him and Kriss & Feuerstein LLP or Jerold Feuerstein, Esq. due to dual or former representation.

To the extent defendant Aguirre argues that disqualification is warranted under the witness-advocate rule (see Code of Professional Conduct, Rule 3.7 [22 NYCRR 1200]), it is not a sufficient basis for disqualification that opposing counsel intends to call the attorney as a witness (Miness v Miness, 202 AD2d 362 [1994]; Kaplan v Maytex Mills, Inc., 187 AD2d 565 [1992]). "The party seeking to disqualify an attorney bears the burden of establishing that the testimony of the attorney who purportedly ought to be called as a witness would be noncumulative of other witnesses' testimony, and thus necessary, or that such testimony, if the attorney were called to testify by [the defendant], would be prejudicial to [the] plaintiff' (Metropolitan Tr. Auth. v 2 Broadway LLC, 279 AD2d 315, 316 [2001]; see also Petrossian v Grossman, 219 AD2d 587 [1995]; Morgasen v Federated Consultant Serv ., Inc., 174 AD2d 656 [1991])" (Forward v Foschi, 27 Misc 3d 1224(A) [2010]).

Defendant Aguirre has failed to demonstrate the manner in which Mr. Feuerstein's testimony would be so adverse to the factual assertions or account of events offered on behalf of plaintiff as to warrant disqualification (see Goldstein v Held, 52 AD3d 471 [2008]; Broadwhite Assoc. v Truong, 237 AD2d 162, 162-163 [1997]). According to defendant Aguirre, plaintiff advised him he did not need an attorney to represent him in connection with the first mortgage loan transaction, and that in reliance upon such advice, he attended the closing of the first mortgage loan on March 30, 2007, without legal counsel. Defendant Aguirre further asserts that when he learned, during the closing, the disbursement of construction funds would be dependent upon his obtaining the approval of New York City Department of Environmental Protection (DEP) of an amended drainage plan and his posting of a $5,000 bond, he voiced an objection to closing that day, and sought an adjournment to accomplish such tasks. Plaintiff allegedly refused to consent to any adjournment, indicating, through its representatives, it would not fund the project unless Aguirre closed the transaction that day under the terms set forth in the loan [*5]documents. Defendant Aguirre admittedly then chose to execute the documents, and makes no claim that in doing so, he lacked any meaningful choice. Thus, to the extent Mr. Feuerstein witnessed defendant Aguirre's objection to closing the transaction on that date, it is not significant on the issue of whether plaintiff engaged in fraud, or used high pressure tactics to induce Aguirre to sign the loan documents.

Defendant Aguirre's claim that Mr. Feuerstein was "privy" to numerous letters sent to plaintiff, likewise is insufficient to require disqualification of plaintiff's counsel. Again, defendant Aguirre does not allege that he is a present or former client of Mr. Feuerstein or the law firm. The letters, furthermore, speak for themselves, and there is no claim by plaintiff that the letters were not received by it or its counsel.

Under such circumstances, that branch of the cross motion by defendant Aguirre to disqualify Kriss & Feuerstein LLP and Jerold Feuerstein, Esq. as attorneys for plaintiff is denied.

With respect to that branch of the cross motion by defendant Aguirre to compel plaintiff to respond to the discovery demand dated November 24, 2009, defendant Aguirre's present counsel has failed to submit any affirmation of good faith, referring to any communications between the parties that would evince a diligent effort by defendant Aguirre to resolve the discovery dispute (see 22 NYCRR 202.7[c]). That branch of the cross motion by defendant Aguirre to compel plaintiff to respond to the November 24, 2009 demand, therefore, is denied (see Natoli v Milazzo, 65 AD3d 1309 [2009]; Amherst Synagogue v Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057 [2006]; Cestaro v Chin, 20 AD3d 500, 501 [2005]; see also Baez v Sugrue, 300 AD2d 519, 521 [2002]).

With respect to those branches of the motion by plaintiff to discontinue the action against defendants Shun Ping Wen and Kenneth Wu, and defendants Jose E. Jimenez Sr., Jose Jimenez, Jr. and Maglay Jimenez (the Jimenez defendants), and for leave to amend the caption, plaintiff named Shun Ping Wen, Kenneth Wu, Jose E. Jimenez Sr., Jose Jimenez, Jr. and Maglay Jimenez as party defendants, and alleged in the complaint that those defendants were contract vendees pursuant to certain contracts to purchase a portion or all of the subject real property. Plaintiff also named "John Doe #1" through "John Doe #12" (the John Doe defendants) as defendants, alleging that such fictitiously-named defendants were tenants or occupants of the subject property.

Plaintiff, in support of its motion, now asserts that defendants Shun Ping Wen and Kenneth Wu, and the Jimenez defendants do not have any interest in the subject property, and there are no tenants or occupants at the subject premises. It contends, therefore, that defendants Shun Ping Wen and Kenneth Wu, the Jimenez defendants and the John Doe defendants are not necessary parties to this action. In addition, plaintiff asserts that it did not cause the Jimenez defendants or the John Doe defendants to be served with process.

On the other hand, plaintiff's counsel asserts that "[d]efendant, V & P Plumbing and Heating, Inc. s/h/a V & P Plumbing & Hearing [sic] Inc." was served with process, and offers an affidavit of service to that effect. It appears that plaintiff seeks leave to amend the caption to indicate the correct name of defendant V & P Plumbing & Heating, Inc. is "V & P Plumbing and Heating, Inc." (emphasis supplied). It also appears that plaintiff incorrectly named defendant New York City Parking Violations Bureau as "New York City Parking Viloations [sic] Bureau." [*6]

Under such circumstances, that branch of the motion by plaintiff to discontinue the action as against defendants Shun Ping Wen, Kenneth Wu, and the Jimenez defendants is granted only to the extent of discontinuing the action against defendants Shun Ping Wen and Kenneth Wu without prejudice. That branch of the motion by plaintiff for leave to amend the caption is granted to the extent of deleting reference in the caption to defendants "John Doe #1" through "John Doe #12," and the Jimenez defendants, and amending the caption to reflect the correct names of defendant V & P Plumbing and Heating, Inc. and New York City Parking Violations Bureau.

With respect to that branch of the motion by plaintiff for summary judgment, it is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). On a motion for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009]; Republic Natl. Bank of NY v O'Kane, 308 AD2d 482, 482 [2003]; see Aames Funding Corp. v Houston, 44 AD3d 692, 693 [2007]).

In support of its motion, plaintiff offers, among other things, a copy of the pleadings, affidavits of service, the first and second mortgages, the modification agreement, the building agreement, the release, the first and second reserve agreements, a copy of the notices of default, an affirmation of regularity of its counsel, and the affidavit of Jerry Bowling, a vice president of plaintiff, attesting to defendant Aguirre's default in payment of the mortgage debts on April 1, 2009.

These submissions establish plaintiff's prima facie entitlement to summary judgment as against defendant Aguirre (see Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009], supra; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002], supra; IMC Mtge. Co. v Griggs, 289 AD2d 294 [2001]; Paterson v Rodney, 285 AD2d 453 [2001], supra). The burden shifts to defendant Aguirre to raise a triable issue of fact regarding his affirmative defenses and counterclaims (see Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [2005]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002], supra; First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2000]).

As a first affirmative defense, defendant Aguirre assert the complaint fails to state a cause of action. Defendant Aguirre has not cross moved to dismiss the complaint on this ground (see Butler v Catinella, 58 AD3d 145, 151 [2008]), and in any event, plaintiff has established its prima facie entitlement to summary judgment. Therefore, the first affirmative defense is surplusage, and the branch of the motion by plaintiff to strike such defense in the amended answer of defendant Aguirre is denied as moot.

With respect to the second, third, and fourth affirmative defenses asserted by defendant Aguirre based upon waiver, estoppel and the statute of frauds, defendant Aguirre has failed to allege or prove any facts supporting such defenses (see Glenesk v Guidance Realty Corp., 36 AD2d 852 [1971], abrogated on other grounds by Butler v Catinella, 58 AD3d 145 [2008], supra). That branch of the motion by plaintiff to dismiss the second, third and fourth affirmative defenses asserted by defendant Aguirre in his amended answer is granted. [*7]

The fifth affirmative defense asserted by defendant Aguirre is based upon lack of proper service of process. Defendant Aguirre has failed to move to dismiss the complaint upon such ground within 60 days of service of a copy of his answer, and does not seek to extend the time upon the ground of hardship (see CPLR 3211[e]). As a consequence, the defense is deemed waived (see CPLR 3211[e]; Reyes v Albertson, 62 AD3d 855 [2009]; Dimond v Verdon, 5 AD3d 718 [2004]; DeSena v HIP Hosp., Inc., 258 AD2d 555 [1999]). That branch of the motion by plaintiff to dismiss the fifth affirmative defense asserted by defendant Aguirre in the amended answer is granted.

The sixth affirmative defense asserted by defendant Aguirre is based upon plaintiff's alleged failure to comply with the provisions of the "Home Equity Theft Prevention Act" (HETPA) (Real Property Law § 265-a). Although HETPA consists of amendments to the Banking Law, Real Property Law, and Real Property Actions and Proceedings Law, defendant Aguirre has failed to specify which portions of HETPA have been violated, or to allege or prove any facts in support of the defense (see Glenesk v Guidance Realty Corp., 36 AD2d 852 [1971], abrogated on other grounds by Butler v Catinella, 58 AD3d 145 [2008] [supra]). In addition, HETPA was enacted to address those sharp practices and deceptive schemes, which are recited in its legislative findings, involving the sale or transfer of residential property to an equity purchaser, at a time after the mortgagor is in default on the mortgage and before the foreclosure sale date (see Real Property Law § 265-a [a]). Defendant Aguirre makes no claim that the subject mortgage loans were related to the sale or transfer of the subject property to an equity purchaser, at a time when he was in default under his prior mortgages (see Real Property Law § 265-a [c]).

To the extent defendant Aguirre asserts that the property is residential and plaintiff has failed to comply with CPLR 3408 and RPAPL 1304, CPLR 3408, as amended (L 2009, c 507, § 25, subd e), provides that the court hold a mandatory settlement conference in any residential foreclosure action involving a "home loan" as defined pursuant to RPAPL 1304, in which the defendant is a resident of the property subject to foreclosure. RPAPL 1304, as amended (L 2009, c 507, § 1-a) defines "home loan" to mean:

"(5)(a) Home loan' means a loan, including an open-end credit plan, other than a reverse mortgage transaction, in which:

(i) The borrower is a natural person;

(ii) The debt is incurred by the borrower primarily for personal, family, or household purposes;

(iii) The loan is secured by a mortgage or deed of trust on real estate improved by a one to four family dwelling, or a condominium unit, in either case, used or occupied, or intended to be used or occupied wholly or partly, as the home or residence of one or more persons and which is or will be occupied by the borrower as the borrower's principal dwelling; and

(iv) The property is located in this state."

Even assuming defendant Aguirre always intended to reside in one of the three two-family houses to be built on the subject premises, the mortgage loans were not incurred primarily for personal, family or household purposes, but rather to finance the commercial construction [*8]project.

That branch of the motion by plaintiff to strike the sixth affirmative defense asserted by defendant Aguirre in his amended answer is granted.

Defendant Aguirre asserts as a seventh affirmative defense that plaintiff failed to provide him with a 30-days notice of default under the mortgages. The mortgages matured, and were due and payable on April 1, 2009, and plaintiff was not required to declare a default or to manifest its election to accelerate the amount due prior to commencing this foreclosure action (see Gerrity Co. Inc. v Riscica, 214 AD2d 866 [1995]; Syracuse Trust Co. v First Trust & Deposit Co., 239 App Div 586 [1933]). That plaintiff gave defendant Aguirre notices of default to defendant Aguirre with respect to both the first and second mortgages, and an opportunity to avoid foreclosure by tendering the full amount due thereunder by August 26, 2009, does not alter such conclusion. Plaintiff brought the action by filing the summons and complaint on September 30, 2009. That branch of the motion by plaintiff to dismiss the seventh affirmative defense asserted by defendant Aguirre in his amended answer is granted.

With respect to the eighth affirmative defense asserted by defendant Aguirre based upon usury, plaintiff contends, among other things, that the state usury laws are inapplicable to the first and second mortgage loans because the laws have been preempted by the federal Depository Institutions Deregulation and Monetary Control Act of 1980 (see 12 USC § 1735f-7a [hereinafter DIDMCA]), and therefore, defendant Aguirre cannot raise violation of such laws as an affirmative defense.

"State usury laws are preempted by DIDMCA with regard to any loan which: (1) was secured by a first lien on residential real property; (2) was made after March 31, 1980; and (3) meets the definition, with certain qualifications, of a federally related mortgage loan (see 12 USC § 1735f-5 [b]; § 1735f-7a [a][1]; see also Banking Law § 14-a [7])" (JPMorgan Chase Bank, N.A. v Malarkey, 65 AD3d 718, 719-720 [2009]). To satisfy the third element, the loan at issue must have been "made in whole or in part by any creditor,' . . . who makes or invests in residential real estate loans aggregating more than $1,000,000 per year" (12 USC § 1735f-5 [b][2][D]). Plaintiff has failed to offer any evidence to establish the third element. Although plaintiff's counsel states in his affirmation dated February 22, 2010 that plaintiff originates more than $1 million in loans per year, he lacks personal knowledge of that fact.

Notwithstanding whether plaintiff can establish the state usury laws are preempted by DIDMCA, however, defendant Aguirre has failed to show that either mortgage loan is usurious. Pursuant to General Obligations Law § 5-501 and Banking Law § 14-a(1), the maximum rate of interest "upon the loan * * * of any money" (General Obligations Law § 5-501[1]) shall be 16% per annum. The stated interest rates of the subject notes are not usurious. The first note and mortgage originally called for a contract rate of interest of 11.99% per annum, and the modification agreement lowered that rate of interest during the extension periods to 8.99% per annum. The second note calls for interest at a contract rate of 8.99% per annum. To the extent the default interest rate is fixed in the first and second notes at the rate of 24% per annum after default or maturity, such provisions are valid and enforceable (see Bloom v Trepmal Const. Corp., 29 AD2d 951 [1968]). That branch of the motion by plaintiff to strike the eighth affirmative defense asserted by defendant Aguirre is granted.

Defendant Aguirre denominates two affirmative defenses in his amended answer as a [*9]"ninth" affirmative defense. The two "ninth" affirmative defenses and the three counterclaims are based upon defendant Aguirre's claims of fraudulent inducement, predatory lending and violation of "Federal and State Banking Statutes."

It is well settled that " to establish a prima facie case of fraud, the plaintiff must establish (1) that the defendant made material representations that were false, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant's representations, and (4) that the plaintiff was injured as a result of the defendant's representations' (Giurdanella v Giurdanella, 226 AD2d 342, 343 [1996])" (Cash v Titan Financial Services, Inc., 58 AD3d 785, 788 [2009]).

Defendant Aguirre has failed to demonstrate any material misrepresentations were made to him by plaintiff regarding the first mortgage loan. To the extent defendant Aguirre asserts plaintiff advised him that he did not "need" an attorney to represent him in relation to the first mortgage loan transaction, clearly, there is no constitutional, statutory or regulatory requirement that a borrower be represented by legal counsel in relation to a mortgage loan transaction. In addition, defendant Aguirre makes no assertion that he expressed a desire to be represented by legal counsel, and plaintiff interfered with his right to counsel, e.g. by refusing to permit him to bring an attorney to represent him to the closing. Rather, defendant Aguirre admittedly closed the first mortgage loan transaction without the benefit of the advice of counsel, as was his right.

Defendant Aguirre has failed to allege any other purported misrepresentation made by plaintiff in connection with the first mortgage loan or the second mortgage loan. Defendant Aguirre makes no claim that an amended drainage plan and the filed bond with the DEP were unnecessary to his obtaining building permits, or that plaintiff had no right under the first and second mortgage loan documents to require proof of such permits before the advancement of construction funds. In addition, defendant Aguirre makes no claim that he made any reasonable effort to have the first mortgage loan documents read to him in English or to have them translated into Spanish. Nor does he claim that plaintiff's representative or its counsel, or anyone else at the first closing, misread or misrepresented the contents of the documents to him. Instead, he admits to having executed those loan documents, despite his being warned of his obligations to obtain DEP's approval of an amended drainage plan and file a bond with the DEP, as a condition to the advancement of the construction funds.

To the extent defendant Aguirre contends he is a handyman, and the victim of predatory lending, defendant Aguirre submitted a resume to plaintiff prior to the making of the mortgage loans, representing that he was a licensed home improvement contractor and salesperson, with 24 years of experience in the construction of residential homes, and had completed all requirements to qualify as a general contractor, with a general contractor license to be issued in April 2007. Insofar as he asserts he is a person insufficiently proficient in the English language, he has failed to show he used reasonable efforts to have the first mortgage loan documents read and explained to him (see Shklovskiy v Khan, 273 AD2d 371, 372 [2000]; see also Kassab v Marco Shoes, 282 AD2d 316 [2001]), or account for why this was not done (see Kenol v Nelson, 181 AD2d 863, 866 [1992]; Sofio v Hughes, 162 AD2d 518, 519 [1990]), to avoid the presumption he knew the contents of the executed loan documents (see British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234 [1991]), and its attendant rule that a contract's signor is bound thereto whether or not the contract was read or understood (see [*10]Maines Paper & Food Serv. v Adel, 256 AD2d 760, 761 [1998]). With respect to the second mortgage loan, defendant Aguirre was represented by his own legal counsel in connection with his execution of the release and second mortgage loan documents.

To the extent defendant Aguirre asserts in his motion papers that plaintiff violated HETPA, such claim is without merit (see supra at 11 ).

To the extent defendant Aguirre asserts plaintiff charged excessive closing costs in violation of Banking Law § 6-l, he has failed to demonstrate that the first mortgage loan was a "high-cost home loan," as that term was defined in that section, as of the date of the making of the subject loan (see Banking Law § 6-l[1][d]; former Banking Law § 6-l[e][i] [L 2002, c 626, § 1, eff. April 1, 2003). Prior to the amendment (effective October 14, 2007 [L 2007, c 552, § 2]) to former Banking Law § 6-l(e)(i) (L 2007, c 552, § 1), mortgage loans in principal amounts exceeding $300,000.00 were not covered by the statute.

Defendant Aguirre's claim that plaintiff violated General Business Law § 349 is premised upon his assertions that plaintiff knew prior to the making of the first mortgage loan that the contemplated financing would be insufficient to cover the project's projected expenses, and plaintiff "forced" him to sign the release before making any advances of construction funds.

General Business § 349 prohibits deceptive business practices and acts. An act is deceptive if it is likely to mislead a reasonable consumer acting reasonably under the circumstances (see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]). The act need not constitute common-law fraud to be actionable (see Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]). Defendant Aguirre has failed to prove a misleading practice by plaintiff (cf. Popular Financial Services, LLC v Williams, 50 AD3d 660 [2008]; Delta Funding Corp. v Murdaugh, 6 AD3d 571 [2004]), or conduct "affecting the consuming public at large" (Brooks v Key Trust Co. Nat. Assn., 26 AD3d 628 [2006]). Defendant Aguirre makes no claim plaintiff misrepresented to him the amount of financing needed to complete the contemplated project, or that he relied upon such misrepresentation. Nor has he established any contractual duty or fiduciary relationship between him and plaintiff, which necessitated plaintiff to share any information regarding the expenses projected by plaintiff's construction consultant, Kenneth O. Wille & Associates, Inc., in the report dated March 5, 2007.

To the extent defendant Aguirre contends he executed the release while under economic duress, a general release, like any contract, may be voided on the ground of economic duress where the complaining party was compelled to agree to its terms by means of a wrongful threat which precluded the exercise of its free will (see Stewart Muller Constr. Co. v New York Tel. Co., 40 NY2d 955 [1976]; Austin Instrument v Loral Corp., 29 NY2d 124, 130 [1971]). Defendant Aguirre, however, has failed to establish plaintiff compelled him to execute the release by means of a wrongful threat which precluded him from exercising free will. Defendant Aguirre has not shown he already had met the conditions precedent to the advances of the first mortgage loan under the loan documents, when plaintiff sought the release. Rather, as of December 6, 2007, the DEP had not given its final approval of the amended drainage plan, and as of January 3, 2008, defendant Aguirre had yet to forward such final approval, along with proof of the posting of a $5,000 bond to plaintiff.

Defendant Aguirre's additional claim that he did not receive any proceeds of the first [*11]mortgage loan for over 10 months, is belied by his admission that a substantial portion of those loan proceeds were used to payoff the existing mortgages. Nor has he shown plaintiff was not permitted under the loan documents to charge interest on the first mortgage loan against the first reserve during the 10 month period.

That branch of the motion by plaintiff to dismiss both the affirmative defenses denominated as the "ninth" affirmative defense asserted by defendant Aguirre in the amended answer is granted.

A dispute as to the exact amount owed by the mortgagor to the mortgagee does not preclude the granting of summary judgment as to liability (see Layden v Boccio, 253 AD2d 540 [1998]). Thus, any dispute as to the exact amount owed plaintiff pursuant to the subject mortgages and notes, as a result of plaintiff's use of funds from the reserves to pay itself interest, may be resolved after a reference pursuant to RPAPL 1321 (see Crest/Good Mfg. Co. v Baumann, 160 AD2d 831 [1990]).

Defendant Aguirre has failed to come forward with any evidence showing the existence of a triable issue of fact with respect to any defense or counterclaim. Defendant Aguirre also has failed to demonstrate the manner in which discovery might reveal the existence of a triable issue of fact in relation to his defenses or counterclaims, warranting the denial of summary judgment (see JP Morgan Chase Bank, N.A. v Agnello, 62 AD3d 662 [2009]). Plaintiff, therefore, is entitled to summary judgment in its favor against him and dismissing the counterclaims (see Fed. Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [1997]; DiNardo v Patcam Serv. Station, 228 AD2d 543 [1996]). That branch of the motion by plaintiff for summary judgment in its favor against defendant Aguirre and dismissing the counterclaims is granted.

That branch of the motion for leave to appoint a referee is granted.

Settle order.

J.S.C.