MAHOPAC NATIONAL BANK v. BAISLEY (1997)

In an action to foreclose a mortgage on certain real property, the defendants Timothy Baisley and Roger W. Simpson appeal from an order of the Supreme Court, Putnam County (Hickman, J.), dated September 25, 1996, which granted the plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The plaintiff bank sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage and the appellants' default in payment (see, Home Sav. Bank v. Schorr Bros. Dev. Corp., 213 A.D.2d 512, 624 N.Y.S.2d 53;  Zitel Corp. v. Fonar Corp., 210 A.D.2d 221, 619 N.Y.S.2d 964).   Accordingly, it was incumbent upon the appellants 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 (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;  Pellicane v. Norstar Bank, 213 A.D.2d 610, 624 N.Y.S.2d 214).   Here, the appellants' submissions in opposition to summary judgment, even when viewed in the light most favorable to them (see, Fleet Mtge. Corp. v. Rebich, 227 A.D.2d 518, 643 N.Y.S.2d 385), were insufficient to show the existence of genuine factual issues relating to a bona fide defense to foreclosure.   Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.

MEMORANDUM BY THE COURT.