American Savings Bank FSB v. Imperato

159 A.D.2d 444

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Francis Pécora, J.), entered March 22, 1989, which granted plaintiff’s motion for summary judgment on its mortgage foreclosure complaint and dismissed defendant’s counterclaim, unanimously affirmed, with costs.

In May 1986, defendant executed a building loan agreement, note and mortgage in the amount of $8,750,000 or so much thereof as plaintiff bank advanced. The construction project encountered substantial difficulties, including delays and cost overruns. After having made advances of approximately $5,000,000, plaintiff ceased making further advances in the spring of 1987. This foreclosure action was brought in April 1988, on the basis of default in making monthly interest payments, payments of real estate taxes and water and sewer charges on the premises, failure to timely remove mechanics’ liens and failure to post a completion deposit. In opposition to the motion, defendant asserted defenses of waiver and estoppel based upon plaintiff’s failure to declare a default earlier and other purported wrongdoing. Defendant, however, failed to raise any genuine, bona fide issue of fact as to such default or defenses. The presentation of a shadowy semblance of an issue is insufficient to defeat summary judgment (Leumi Fin. Corp. v Richter, 24 AD2d 855, affd 17 NY2d 166). Concur— Kupferman, J. P., Ross, Milonas, Asch and Ellerin, JJ.