Barclays Bank of New York, N.A. v. Sokol
| Decision Date | 02 March 1987 |
| Citation | 512 N.Y.S.2d 419,128 A.D.2d 492 |
| Parties | BARCLAYS BANK OF NEW YORK, N.A., Respondent, v. Marshall D. SOKOL, et al., Defendants, Phyllis K. Sokol, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ralph S. Joseph, New City, for appellant.
Marcus, Rippa & Gould, White Plains (Kenneth J. Gould, of counsel), for respondent.
Before MOLLEN, P.J., and LAWRENCE, KUNZEMAN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, the defendant Phyllis K. Sokol appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered October 3, 1985, which, upon granting the plaintiff's motion for summary judgment on its complaint and dismissing her first and second counterclaims, appointed a referee to compute the amounts due on the mortgage.
ORDERED that the order is affirmed, without costs or disbursements.
On July 10, 1981, the appellant Phyliss K. Sokol and her husband Marshall D. Sokol, duly executed and delivered to the plaintiff Barclays Bank, as security for a business loan, a second mortgage on the Sokol family residence securing the $60,000 note of Marshall D. Sokol Associates, Inc., for whose benefit the loan proceeds were intended. Sometime thereafter, however, the loan lapsed into default. The plaintiff thereupon sought to foreclose upon the mortgaged premises, then occupied by the appellant, who had previously separated from her husband Marshall, the principal of Marshall D. Sokol Associates, Inc. In opposition to the plaintiff's motion for summary judgment, the appellant's principal defense was the contention that her execution of the mortgage instrument had been procured by the fraud of her husband and a former bank officer involved with the loan, both of whom, it was alleged, represented to her, inter alia, that the condition of the business was excellent when, in fact, it was poor. According to the appellant, she would not have signed the mortgage had she known the truth about the financial condition of the business. Special Term granted the plaintiff summary judgment concluding, inter alia, that no genuine issues of fact existed with respect to the appellant's contention that she had been fraudulently induced to execute the subject mortgage by the former bank officer involved. We agree.
It is well settled that "on a motion for summary judgment, the court must determine whether the factual issues presented are genuine or unsubstantiated" (Columbus Trust Co. v. Campolo, ...
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