Citicorp Mortgage, Inc. v. Chen

237 A.D.2d 968, 656 N.Y.S.2d 985, 1997 N.Y. App. Div. LEXIS 3573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1997
• Status: Published

Opinion

Order unanimously reversed on the law with costs, motion granted and complaint against defendants John Chen and Carol Hatch dismissed. Memorandum: Supreme Court erred in denying the motion of John Chen and Carol Hatch (defendants) for summary judgment dismissing the complaint against them in this mortgage foreclosure action. The complaint alleges that defendants failed to pay the amount of principal and interest due on March 1, 1995 and that more than 30 days elapsed thereafter without payment. Defendants submitted proof in evidentiary form establishing that Hatch made payments of principal and interest in March and April 1995, thus shifting the burden to plaintiff to raise a triable issue of fact by evidentiary proof in admissible form (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Plaintiff failed to meet that burden. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.— Summary Judgment.) Present—Denman, P. J., Pine, Doerr, Balio and Fallon, JJ.