Chase Lincoln First Bank, N.A. v. Dietrick

184 A.D.2d 1032, 584 N.Y.S.2d 357, 1992 N.Y. App. Div. LEXIS 8271

Opinion

Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying plaintiffs motion seeking summary judgment on its complaint and dismissal of defendant’s answer and counterclaim in this mortgage foreclosure action. Plaintiff’s documentary evidence established the existence of a valid mortgage, and defendant admitted that there is an unpaid balance past due on that mortgage. Therefore, plaintiff made a prima facie showing of entitlement to summary judgment on its complaint (see, Marine Midland Bank v Cafferty, 174 AD2d 932, 934; Northeast Sav. v Rodriguez, 159 AD2d 820, 821, amended 162 AD2d 749, appeal dismissed 76 NY2d 889; Snyder v Potter, 134 AD2d 664, 665). Defendant was then obligated to demonstrate the existence of a triable issue of fact to defeat plaintiff’s motion. She failed to meet that burden. Defendant’s purported counterclaim against plaintiff does not relate to the inception or to the validity of the mortgage. Defendant alleges that she purchased a policy of disability insurance from Prudential Insurance Company of America through the solicitation of one of plaintiffs employees. Thereafter, she was injured in an automobile accident and became disabled. Defendant made a claim under the disability policy. Prudential denied the claim, however, because defendant, in applying for the policy, failed to disclose her medical history or treatment. We conclude that defendant’s "Third-Party Complaint and/or Counterclaim” fails to state a cause of action against plaintiff and is not so intertwined with the mortgage foreclosure action that denial of plaintiff’s summary judgment motion is warranted pending the resolution of defendant’s insurance claim (see, Marine Midland Bank v Cafferty, supra, at 935-937). (Appeal from Order of Supreme Court, Chautauqua County, Ricotta, J. — Summary Judgment.) Present — Green, J. P., Pine, Boehm, Fallon and Davis, JJ.