Mahopac National Bank v. Baisley

244 A.D.2d 466, 664 N.Y.S.2d 345, 1997 N.Y. App. Div. LEXIS 11599

Opinion

—In an action to foreclose a mortgage on certain real property, the defendants Timothy Baisley and Roger W. Simpson appeal from an order of the Supreme Court, Putnam County (Hickman, J.), dated September 25, 1996, which granted the plaintiffs motion for summary judgment.

Ordered that the order is affirmed, with costs.

The plaintiff bank sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage and the appellants’ default in payment (see, Home Sav. Bank v Schorr Bros. Dev. Corp., 213 AD2d 512; Zitel Corp. v Fonar Corp., 210 AD2d 221). Accordingly, it was incumbent upon the appellants to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183; Pellicane v Norstar Bank, 213 AD2d 610). Here, the appellants’ submissions in opposition to summary judgment, even when viewed in the light most favorable to them (see, Fleet Mtge. Corp. v Rebich, 227 AD2d 518), were insufficient to show the existence of genuine factual issues relating to a bona fide defense to foreclosure. Accordingly, the Supreme Court properly granted the plaintiffs motion for summary judgment. Miller, J. P., Ritter, Altman and Krausman, JJ., concur.