Home Savings Bank v. Schorr Bros. Development Corp.

213 A.D.2d 512, 624 N.Y.S.2d 53, 1995 N.Y. App. Div. LEXIS 2908

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1995
• Status: Published

Opinion

—In an action, inter alia, to foreclose mortgages on real property, the defendants Schorr Brothers Development Corp., Harold Schorr, Theodore Schorr, and Seymour Schorr appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated January 5, 1993, which, inter alia, granted the plaintiff’s motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

In its motion for summary judgment, the plaintiff established its case as a matter of law through the production of the mortgages and the unpaid notes. The appellants were then required to assert any defenses which would raise a question of fact concerning their default on the mortgages (see, Marine Midland Bank v Freedom Rd. Realty Assocs., 203 AD2d 538; Sloane v Gape, 191 AD2d 549; LBV Props. v Greenport Dev. Co., 188 AD2d 588), such as "waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the [plaintiffs] part” (Ferlazzo v Riley, 278 NY 289, 292; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183). Here, the appellants’ conclusory and unsubstantiated assertions are not supported by competent evidence and are insufficient to defeat the plaintiffs motion (see, Zuckerman v City of New York, 49 NY2d 557; Marine Midland Bank v Freedom Rd. Realty Assocs., supra; LBV Props, v Greenport Dev. Co., supra). Balletta, J. P., O’Brien, Thompson and Ritter, JJ., concur.