Chase Manhattan Bank v. Martinez

292 A.D.2d 166, 738 N.Y.S.2d 205, 2002 N.Y. App. Div. LEXIS 2266

Opinion

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about January 12, 2001, which, to the extent appealed from, denied plaintiff’s motion for summary judgment and related relief, unanimously affirmed, without costs.

Plaintiff’s summary judgment motion in this mortgage foreclosure action was properly denied, since plaintiff mortgage holder failed to meet its burden to demonstrate defendant-respondent mortgagor’s default under the subject mortgage (see, Staten Is. Sav. Bank v Carnival, 39 AD2d 779). Plaintiff, inter alia, failed to produce a statement of account showing defendant-respondent to be in default. Moreover, defendant-respondent’s opposition to plaintiff’s summary judgment motion was sufficient to raise triable questions of fact respecting her payment history and the default alleged against her. Concur — Mazzarelli, J.P., Ellerin, Lemer, Rubin and Marlow, JJ.