SINARDI v. RIVERA (1999)

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Henry, J.), dated February 24, 1998, which denied his motion for summary judgment against the defendants Ralph Rivera and Lillian Rivera.

ORDERED that the order is affirmed, with costs.

 The plaintiff established a prima facie case for summary judgment by submitting proof of the mortgage and note and the default of the defendants Ralph Rivera and Lillian Rivera (hereinafter the respondents) (CPLR 3212 [b];  see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The respondents, however, presented sufficient admissible evidence in the form of documentary evidence and an affidavit of one with personal knowledge of the underlying transaction to raise a triable issue of fact as to whether the mortgage had been obtained by the plaintiff's fraudulent misrepresentations (see, Great Commn. v. Northeastern Communications, 159 A.D.2d 921, 922, 553 N.Y.S.2d 535;  cf., Miller Planning Corp. v. Wells, 253 A.D.2d 859, 678 N.Y.S.2d 340;  Chemical Bank v. Bowers, 228 A.D.2d 407, 643 N.Y.S.2d 653;  Prudential Ins. Co. of Am. v. Kelly, 174 A.D.2d 717, 571 N.Y.S.2d 761;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Under these circumstances, the Supreme Court properly denied the plaintiff's motion.

MEMORANDUM BY THE COURT.