Metropolitan Distribution Services, Inc. v. DiLascio

176 A.D.2d 312, 574 N.Y.S.2d 755, 1991 N.Y. App. Div. LEXIS 12343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1991
• Status: Published

Opinion

— In a mortgage foreclosure action, the defendant Richard DiLascio appeals from an order of the Supreme Court, Westchester County (Gurahian, J.), dated March 13, 1990, which granted the plaintiffs motion to dismiss his affirmative defenses, and for summary judgment in its favor.

Ordered that the order is affirmed, with costs.

Contrary to the appellant’s contention, we find that the Supreme Court properly awarded summary judgment to the plaintiff. In support of its motion for summary judgment, the plaintiff established its case as a matter of law through the production of the mortgage and the unpaid note (see, Marton Assocs. v Vitale, 172 AD2d 501). It was thus incumbent upon the appellant to assert any defenses which could properly raise a question of fact as to his default on the mortgage (see, Marton Assocs. v Vitale, supra; Lombardi v Pisari, 77 AD2d 646). Upon our review of the record, we find that the appellant’s bare and unsubstantiated allegation that the mortgage amortization schedule was not annexed to the mortgage note is contradicted by the express terms of the note, and is insufficient to create an issue of fact which would warrant a trial (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; City of New York v Grosfeld Realty Corp., 173 AD2d 436; Marton Assocs. v Vitale, supra).

We have examined the appellant’s remaining contentions, and find that they are without merit. Harwood, J. P., Lawrence, Eiber and Balletta, JJ., concur.