Flushing National Bank v. Jerder Realty Services, Inc.

88 A.D.2d 945, 451 N.Y.S.2d 442, 1982 N.Y. App. Div. LEXIS 17306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1982
• Status: Published

Opinion

— In a mortgage foreclosure action, plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Rubin, J.), dated June 29, 1981, as granted defendant Arthur-Arden Corporation’s motion for summary judgment and directed that plaintiff execute and deliver a mortgage release to said defendant. Order reversed, insofar as appealed from, on the law, with $50 costs and disbursements, and motion for summary judgment denied. It is axiomatic that if there is a triable issue of fact, summary judgment will be denied (see, e.g., Sillman u Twentieth Century-Fox Film Corp., 3 NY2d 395). In the present case, at least one such issue exists, to wit, whether defendant Arthur-Arden is entitled to a release of the mortgage. By the terms of the mortgage, default precluded a release. On the present state of the record, evidentiary facts do not establish that the mortgage was not in default on the date defendant Arthur-Arden took title to the subject parcel. Because that date (June 6,1975) was prior to the date that the loan was due (November 13,1975), defendant Arthur-Arden contends that the terms of the mortgage entitling it to a release were satisfied, i.e., there was no default. Monthly interest payments were, however, due, so that it may well be, as plaintiff asserts, that the mortgage was in default at the time of the conveyance to defendant Arthur-Arden. Resolution of the issue must await a trial. Thompson, J. P., Brown, Rubin and Boyers, JJ., concur.