Grodsky v. Moore

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

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.