U.S. BANK NATIONAL ASSOCIATION, SOLELY IN ITS CAPACITY AS TRUSTEE OF THE ASSET BACKED SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES AMQ 21006-HE7 (ABSHE 2006-HE7), plf-res, v. DLJ MORTGAGE CAPITAL, INC., def, AMERIQUEST MORTGAGE COMPANY, def-ap

2790. U.S. BANK NATIONAL ASSOCIATION, SOLELY IN ITS CAPACITY AS TRUSTEE OF THE ASSET BACKED SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES AMQ 21006-HE7 (ABSHE 2006-HE7), plf-res, v. DLJ MORTGAGE CAPITAL, INC., def, AMERIQUEST MORTGAGE COMPANY, def-ap — Knuckles, Komosinki & Manfro, LLP, Elmsford (John E. Brigandi of counsel), for ap — Kasowitz, Benson, Torres & Friedman, LLP, New York (Hector Torres of counsel), for res — —Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about April 6, 2016, which, to the extent appealed from as limited by the briefs, denied defendant Ameriquest Mortgage Company’s (Ameriquest) motion to dismiss the complaint, unanimously affirmed, with costs.

The heart of Ameriquest’s appeal is premised on a provision of the parties’ Mortgage Loan Purchase and Interim Servicing Agreement (MLPA) that was not raised before the motion court. Ameriquest contends that this provision, found in the fourth paragraph of Section 7.04 of the MLPA (the Notice Restriction Provision), bars plaintiff’s claims because it purportedly required plaintiff to notify Ameriquest within 90 days of discovery of any breach of the representations and warranties found in that agreement, which plaintiff failed to do. On this basis, Ameriquest contends that the action should be dismissed.