Champion Mortgage Co. v. Elmore

Appellate Division of the Supreme Court of New York

Champion Mortgage Co. v. Elmore

5 A.D.3d 140, 772 N.Y.S.2d 505, 2004 N.Y. App. Div. LEXIS 2267

Appellate Division of the Supreme Court of the State of New York·Decided March 4, 2004·Published·Cited by 2 cases

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered February 7, 2003, which, in this mortgage foreclosure action, granted the motion of plaintiff for summary judgment foreclosing on the mortgage and striking defendant’s affirmative defenses, and referred the matter to a referee to compute all amounts due to plaintiff, unanimously affirmed, without costs.

The motion court correctly granted plaintiffs motion for summary judgment foreclosing on the mortgage based upon defendant’s failure to make the required monthly payments. Defendant’s affirmative defense of fraud, predicated upon oral representations at odds with the plain and unambiguous terms of the note and the payment reduction provision subsequently signed by him, was properly struck (see Mariani v Dyer, 193 AD2d 456, 457 [1993], lv denied 82 NY2d 658 [1993]; Humble Oil & Ref. Co. v Jaybert Esso Serv. Sta., 30 AD2d 952 [1968]).

[141]*141We have considered defendant’s remaining arguments and find them unavailing. Concur—Nardelli, J.P., Andrias, Sullivan and Lerner, JJ.

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Order, Supreme Court, Bronx County (Alan Saks, J.), entered February 7, 2003, which, in this mortgage foreclosure action, granted the motion of plaintiff for summary judgment foreclosing on the mortgage and striking defendant’s affirmative defenses, and referred the matter to a referee to compute all amounts due to plaintiff, unanimously affirmed, without costs.

The motion court correctly granted plaintiffs motion for summary judgment foreclosing on the mortgage based upon defendant’s failure to make the required monthly payments. Defendant’s affirmative defense of fraud, predicated upon oral representations at odds with the plain and unambiguous terms of the note and the payment reduction provision subsequently signed by him, was properly struck (see Mariani v Dyer, 193 AD2d 456, 457 [1993], lv denied 82 NY2d 658 [1993]; Humble Oil & Ref. Co. v Jaybert Esso Serv. Sta., 30 AD2d 952 [1968]).

[141]*141We have considered defendant’s remaining arguments and find them unavailing. Concur—Nardelli, J.P., Andrias, Sullivan and Lerner, JJ.

Champion Mortgage Co. v. Elmore, 5 A.D.3d 140, 772 N.Y.S.2d 505, 2004 N.Y. App. Div. LEXIS 2267 (N.Y. Ct. App. 2004).

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