Tanen v. Benaresh

201 A.D.2d 398, 607 N.Y.S.2d 664

Opinion

Interlocutory judgment, Supreme Court, New York County (Kristin Booth Glen, J.), entered December 8, 1992, inter alia, granting plaintiffs motion for summary judgment in her favor against defendant Benaresh, in this action to foreclose a consolidated mortgage on the premises located at 1842 Second Avenue, unanimously affirmed, with costs.

The IAS Court properly granted summary judgment to plaintiff mortgagee. Plaintiff established, by documentary evidence, that defendant had defaulted on scheduled payments of obligations for which he was personally liable and which were secured by the subject consolidated mortgage. By contrast, defendant failed to come forward with adequate proof in admissible form to require a trial of material issues of fact as to the opposing claims of overreaching and undue influence on the part of plaintiff and "unclean hands”, on the part of plaintiffs husband. Defendant failed to produce any documentary proof that plaintiffs husband, who drafted the instruments in question, had in fact, acted as defendant’s attorney with respect to these transactions. Moreover, except for defendant’s conclusory averments, no proof was adduced to demonstrate plaintiffs husband had misrepresented the recourse nature of the instrument upon which defendant ultimately defaulted. Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.