CASSARA v. WYNN (2008)

Plaintiff commenced this action seeking to foreclose on a mortgage given by defendant, which had been assigned to her by the mortgagee.   We agree with defendant that there is an issue of fact whether plaintiff breached the terms of the mortgage and thus that Supreme Court erred in granting plaintiff's motion for summary judgment on the complaint.   Plaintiff established her entitlement to judgment as a matter of law by submitting the mortgage, unpaid note, and proof of defendant's default (see Rose v. Levine, 52 A.D.3d 800, 861 N.Y.S.2d 374;  Credit-Based Asset Servicing & Securitization v. Grimmer, 299 A.D.2d 887, 888, 750 N.Y.S.2d 673).   Defendant, however, raised a triable issue of fact whether he has a valid defense to the action (see Rose, 52 A.D.3d 800, 861 N.Y.S.2d 374), inasmuch as tender of payment is a valid defense in a mortgage foreclosure action (see e.g. United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 765, 724 N.Y.S.2d 134;  First Fed. Sav. Bank v. Midura, 264 A.D.2d 407, 694 N.Y.S.2d 121).   Here, defendant submitted evidence raising a triable issue of fact whether plaintiff breached the provision of the mortgage requiring her to furnish payoff figures to defendant and thereby constructively rejected defendant's efforts to tender payment satisfying the mortgage.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied and the answer is reinstated.

MEMORANDUM: