Fleet Mortgage Corp. v. Rebich

227 A.D.2d 518, 643 N.Y.S.2d 385, 1996 N.Y. App. Div. LEXIS 5323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1996
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated March 14, 1995, which granted the plaintiffs motion for summary judgment.

Ordered that the order is affirmed, with costs.

In support of its motion for summary judgment, the plaintiff sustained its initial burden of demonstrating its entitlement to judgment as a matter of law (see, Marine Midland Bank v Freedom Rd. Realty Assocs., 203 AD2d 538; LBV Props. v Green-port Dev. Co., 188 AD2d 588, 589). It thus became incumbent upon the defendant to allege facts in opposition which, if true, constitute a meritorious defense (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 182; Red Rock Holdings v Mandel, 220 AD2d 495). Giving the defendant the benefit of every favorable inference (see, Red Rock Holdings v Mandel, supra), he has failed to establish the existence of factual issues pertaining to the defenses of waiver and estoppel. Accordingly, the Supreme Court properly granted the plaintiffs motion for summary judgment. Rosenblatt, J. P., Miller, Pizzuto and Goldstein, JJ., concur.