Midfirst Savings & Loan Ass'n v. James

224 A.D.2d 498, 638 N.Y.S.2d 353, 1996 N.Y. App. Div. LEXIS 1114

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1996
• Status: Published

Opinion

—In an action to foreclose a mortgage on real property, the defendant appeals from an order of the Supreme Court, Kings County (Held, J.), dated June 15, 1992, which granted the plaintiff’s motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion for summary judgment is denied.

Although the plaintiff made a prima facie showing that the defendant had failed to make payments in accordance with the terms of her note and mortgage, the defendant thereafter carried her burden of establishing the existence of triable issues of fact as to whether it was the negligent and otherwise improper actions of the plaintiff which brought about the default upon which the foreclosure is sought (see, e.g., Greenpoint Sav. Bank v Pennolino, 136 AD2d 600; cf., Loan Am. Fin. Corp. v Talboom, 163 Misc 2d 199). Under these circumstances, summary judgment was improperly granted. Santucci, J. P., Altman, Friedmann and Florio, JJ., concur.