255 Co. v. World Wide Trend Setters, Inc.

Appellate Division of the Supreme Court of New York

255 Co. v. World Wide Trend Setters, Inc.

148 A.D.2d 336, 538 N.Y.S.2d 550, 1989 N.Y. App. Div. LEXIS 2443

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 14, 1989

StatusPublished

This text of 148 A.D.2d 336 (255 Co. v. World Wide Trend Setters, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

255 Co. v. World Wide Trend Setters, Inc., 148 A.D.2d 336, 538 N.Y.S.2d 550, 1989 N.Y. App. Div. LEXIS 2443 (N.Y. Ct. App. 1989).

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Opinion

Order of the Supreme Court, New York County (Myriam J. Altman, J.), entered on or about June 1, 1988, which, inter alia, denied plaintiff’s motion for summary [337]*337judgment, unanimously reversed to the extent appealed from, on the law, with costs, the motion for summary judgment granted, and the matter remanded for further proceedings.

Plaintiff commenced an action to foreclose a mortgage made by defendant World Wide Trend Setters, Inc., and after joinder of issue, moved for an order striking said defendant’s affirmative defenses and granting summary judgment. The court, while granting the motion in part, found that the affidavit of defendant’s president raised an issue of fact precluding summary disposition. We disagree. Defendant’s president simply claimed, without supporting proof, that payment had been timely made by ordinary mail. No indication was given as to the amount of the tender, the person to whom the tender was made, or whether the tender was made before or after plaintiff had elected to accelerate the debt. Nor did defendant demonstrate by factual submissions that defendant in fact possessed the requisite funds to cure the default. We find under these circumstances that defendant’s bare claim of payment, without more, is insufficient to defeat the motion for summary judgment. Concur — Murphy, P. J., Carro, Asch, Rosenberger and Smith, JJ.

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Order of the Supreme Court, New York County (Myriam J. Altman, J.), entered on or about June 1, 1988, which, inter alia, denied plaintiff’s motion for summary [337]*337judgment, unanimously reversed to the extent appealed from, on the law, with costs, the motion for summary judgment granted, and the matter remanded for further proceedings.

Plaintiff commenced an action to foreclose a mortgage made by defendant World Wide Trend Setters, Inc., and after joinder of issue, moved for an order striking said defendant’s affirmative defenses and granting summary judgment. The court, while granting the motion in part, found that the affidavit of defendant’s president raised an issue of fact precluding summary disposition. We disagree. Defendant’s president simply claimed, without supporting proof, that payment had been timely made by ordinary mail. No indication was given as to the amount of the tender, the person to whom the tender was made, or whether the tender was made before or after plaintiff had elected to accelerate the debt. Nor did defendant demonstrate by factual submissions that defendant in fact possessed the requisite funds to cure the default. We find under these circumstances that defendant’s bare claim of payment, without more, is insufficient to defeat the motion for summary judgment. Concur — Murphy, P. J., Carro, Asch, Rosenberger and Smith, JJ.

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Bluebook (online)

148 A.D.2d 336, 538 N.Y.S.2d 550, 1989 N.Y. App. Div. LEXIS 2443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/255-co-v-world-wide-trend-setters-inc-nyappdiv-1989.