Kitain v. Windley

Appellate Division of the Supreme Court of New York

Kitain v. Windley

283 A.D.2d 463, 724 N.Y.S.2d 641, 2001 N.Y. App. Div. LEXIS 5031

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

DecidedMay 14, 2001

StatusPublished

Cited by1 cases

This text of 283 A.D.2d 463 (Kitain v. Windley) 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

Kitain v. Windley, 283 A.D.2d 463, 724 N.Y.S.2d 641, 2001 N.Y. App. Div. LEXIS 5031 (N.Y. Ct. App. 2001).

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Opinion

—In consolidated actions to foreclose a mortgage on real property and to rescind a mortgage, the defendant Cardell E. Windley appeals from a judgment of foreclosure of the Supreme Court, Kings County (Clemente, J.), entered June 3, 1999, which, upon an order of the same court, dated November 20, 1998, inter alia, granting the plaintiffs motion for partial summary judgment, is in favor of the plaintiff and against him in the principal sum of $69,964.41.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly granted partial summary judgment to the plaintiff mortgagee. The plaintiff established his entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage and note and alleging the appellant’s failure to make the mortgage payments. In response, the appellant did not dispute that he had defaulted on the mortgage and asserted no defenses which would raise a question of fact as to his default, such as waiver, bad faith, fraud, or oppressive or unconscionable conduct by the mortgagee (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Miller Planning Corp. v Wells, 253 AD2d 859). O’Brien, J. P., Friedmann, Feuerstein and Cozier, JJ., concur.

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—In consolidated actions to foreclose a mortgage on real property and to rescind a mortgage, the defendant Cardell E. Windley appeals from a judgment of foreclosure of the Supreme Court, Kings County (Clemente, J.), entered June 3, 1999, which, upon an order of the same court, dated November 20, 1998, inter alia, granting the plaintiffs motion for partial summary judgment, is in favor of the plaintiff and against him in the principal sum of $69,964.41.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly granted partial summary judgment to the plaintiff mortgagee. The plaintiff established his entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage and note and alleging the appellant’s failure to make the mortgage payments. In response, the appellant did not dispute that he had defaulted on the mortgage and asserted no defenses which would raise a question of fact as to his default, such as waiver, bad faith, fraud, or oppressive or unconscionable conduct by the mortgagee (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Miller Planning Corp. v Wells, 253 AD2d 859). O’Brien, J. P., Friedmann, Feuerstein and Cozier, JJ., concur.

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Bluebook (online)

283 A.D.2d 463, 724 N.Y.S.2d 641, 2001 N.Y. App. Div. LEXIS 5031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitain-v-windley-nyappdiv-2001.

Opinion

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