Grodsky v. Moore

Appellate Division of the Supreme Court of New York

Grodsky v. Moore

136 A.D.3d 865, 24 N.Y.S.3d 916

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 17, 2016

Docket2013-11208

StatusPublished

Cited by2 cases

This text of 136 A.D.3d 865 (Grodsky v. Moore) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Grodsky v. Moore, 136 A.D.3d 865, 24 N.Y.S.3d 916 (N.Y. Ct. App. 2016).

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Opinion

— In an action to foreclose a mortgage, the defendants Francine J. Moore and Rodney Tramantano appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated August 23, 2013, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the defendants Francine J. Moore and Rodney Tramantano is denied.

In this mortgage foreclosure action, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and evidence of the mortgagor’s default (see Aurora Loan Servs., LLC v Enaw, 126 AD3d 830, 830 [2015]; Fleet Natl. Bank v Olasov, 16 AD3d 374, 374 [2005]). However, in opposition to the plaintiff’s prima facie showing, the appellants raised a triable issue of fact with respect to their affirmative defense alleging usury (see Zanfini v Chandler, 79 AD3d 1031, 1032 [2010]; cf. Chiarelli v Kotsifos, 5 AD3d 345, 346 [2004]; Tower Funding v Berry Realty, 302 AD2d 513, 514-515 [2003]). Accordingly, that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the appellants should have been denied.

Leventhal, J.R, Chambers, Cohen and Hinds-Radix, JJ., concur.

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— In an action to foreclose a mortgage, the defendants Francine J. Moore and Rodney Tramantano appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated August 23, 2013, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the defendants Francine J. Moore and Rodney Tramantano is denied.

In this mortgage foreclosure action, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and evidence of the mortgagor’s default (see Aurora Loan Servs., LLC v Enaw, 126 AD3d 830, 830 [2015]; Fleet Natl. Bank v Olasov, 16 AD3d 374, 374 [2005]). However, in opposition to the plaintiff’s prima facie showing, the appellants raised a triable issue of fact with respect to their affirmative defense alleging usury (see Zanfini v Chandler, 79 AD3d 1031, 1032 [2010]; cf. Chiarelli v Kotsifos, 5 AD3d 345, 346 [2004]; Tower Funding v Berry Realty, 302 AD2d 513, 514-515 [2003]). Accordingly, that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the appellants should have been denied.

Leventhal, J.R, Chambers, Cohen and Hinds-Radix, JJ., concur.

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Bluebook (online)

136 A.D.3d 865, 24 N.Y.S.3d 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grodsky-v-moore-nyappdiv-2016.

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