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

Appellate Division of the Supreme Court of the State of New York·Decided May 14, 2001·Published·Cited by 1 cases

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.

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).

Pincite

283 A.D.2d 463 (Kitain v. Windley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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