BANK NATIONAL ASSOCIATION TR 01 98 HOME EQUITY LOAN TRUST 1998 v. ALVAREZ (2008)

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated April 25, 2007, as denied that branch of its motion which was for summary judgment on the complaint and denied those branches of its motion whose were to dismiss the affirmative defense of fraud and the counterclaim for rescission of the note and mortgage.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 In order to establish its prima facie entitlement to summary judgment in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of default (see Hoffman v. Kraus, 260 A.D.2d 435, 436, 688 N.Y.S.2d 575;  Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345).   The burden then shifts to the defendant 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” (id. at 467, 664 N.Y.S.2d 345;  see Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265).

 Here, after the plaintiff, the assignee of a note and mortgage executed by the defendant, established, prima facie, its entitlement to judgment as a matter of law, the defendant raised triable issues of fact concerning the defense of fraud and the counterclaim for rescission, which precluded the granting of summary judgment to the plaintiff (see Bankers Trust Co. of Cal., N.A. v. Sciarpelletti, 28 A.D.3d 408, 411-412, 816 N.Y.S.2d 71;  State St. Bank & Trust Co. v. Boayke, 249 A.D.2d 535, 671 N.Y.S.2d 359;  Horowitz v. Griggs, 245 A.D.2d 486, 666 N.Y.S.2d 480).

The plaintiff's remaining contentions are without merit.