Marine Midland Bank, N.A. v. Freedom Road Realty Associates

• Decision Date: 25 April 1994
• Citation: 611 N.Y.S.2d 34,203 A.D.2d 538
• Parties: MARINE MIDLAND BANK, N.A., Respondent, v. FREEDOM ROAD REALTY ASSOCIATES, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 34

611 N.Y.S.2d 34

203 A.D.2d 538

MARINE MIDLAND BANK, N.A., Respondent, v. FREEDOM ROAD REALTY ASSOCIATES, et al., Appellants, et al Defendants.

Supreme Court, Appellate Division Second Department.

April 25, 1994.

Frederick E. Maute, Comwall-on-Hudson, for appellants.

Hutton Ingram Yuzek Gainen Carroll & Bertolotti, New York City (Daniel L. Carroll and Scott A. Silverstein, of counsel), for respondent.

Before SULLIVAN, J.P., and O'BRIEN, GOLDSTEIN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendants Freedom Road Realty Associates, Insulpane, Inc., Robert Waxtel, Charles Squillante, and Edward Smith appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Orange County (Hillery, J.), dated April 30, 1992, as granted those branches of the plaintiffs' motion which were for summary judgment and for dismissal of their affirmative defenses and counterclaims, and denied their cross motion for leave to serve an amended answer, (2) from an order of the same court dated December 9, 1992, which denied their motion, in effect, for reargument, and (3) from a judgment of foreclosure and sale of the same court entered December 16, 1992.

ORDERED that appeal from the order dated April 30, 1992, is dismissed; and it is further,

ORDERED that the appeal from the order dated December 9, 1992, is dismissed since no appeal lies from an order denying reargument; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the respondent is awarded on bill of costs.

The appeal from the intermediate order dated April 30, 1992, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from that order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

In its motion for summary judgment, the plaintiff established its case as a matter of law through the production of the mortgage and the unpaid note. The appellants were then required to assert any defenses which would raise a question of fact about their default on the mortgage (see, LBV Props. v. Greenport Dev. Co., 188 A.D.2d 588, 591 N.Y.S.2d 70; Metropolitan Distrib. Servs. v. DiLascio, 176 A.D.2d 312, 574 N.Y.S.2d 755), such as "waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter's part" (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, quoting Ferlazzo v. Riley, 278 N.Y. 289, 292, 16 N.E.2d 286). In the present case, we find that the appellants' conclusory and unsubstantiated assertions are not supported by competent evidence and are insufficient to defeat the plaintiff's motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; LBV Props. v. Greenport Dev. Co., supra).

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