National Sav. Bank of Albany v. Hartmann
| Decision Date | 09 April 1992 |
| Citation | 582 N.Y.S.2d 523,179 A.D.2d 76 |
| Parties | NATIONAL SAVINGS BANK OF ALBANY, Respondent, v. William HARTMANN et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Desmond and Holsberger (Carl Holsberger, of counsel), Scotia, for appellants.
Hinman, Straub, Pigors & Manning, P.C. (Patrick J. Higgins, of counsel), Albany, for respondent.
Before LEVINE, J.P., and MERCURE, MAHONEY and CASEY, JJ.
Appeal from a judgment of the Supreme Court (John G. Dier, J.), entered October 1, 1991 in Warren County, which granted plaintiff's motion for summary judgment.
Defendants William Hartmann, Marjorie A. Hartmann and Marjorie J. Johnson (hereinafter collectively referred to as defendants) owed plaintiff approximately $865,000 under the terms of a consolidated note and mortgage securing real property consisting of a multiunit residential apartment complex located in the City of Glens Falls, Warren County. Upon defendants' default in payment of the monthly installment of principal and interest due January 1, 1991, on February 1, 1991 plaintiff accelerated the loan and thereafter commenced this action to foreclose the mortgage. Following joinder of issue, plaintiff moved for summary judgment. Supreme Court granted the motion and defendants appeal.
There should be an affirmance. Plaintiff clearly supported its motion with a prima facie showing of entitlement to judgment as a matter of law, thereby shifting the burden to defendants (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). In opposition, defendants came forward with only their verified answer and an attorney's affidavit, neither of which sufficed to raise a legitimate factual issue (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although there is no question that plaintiff was entitled to and did accelerate the loan on February 1, 1991, it is defendants' position that they made a valid tender of the overdue payment on the same day, prior to their receipt of notice of plaintiff's election to accelerate the obligation. The only factual support for this position, however, is found in the allegations of paragraphs 13 through 15 of the verified answer "[t]hat on the 1st day of February, 1991, William Hartmann approached the National Savings Bank, Saratoga Branch, with certified funds, ready willing and able to pay the January and February 1991 payments * * * [t]hat said funds were tendered to plaintiff * * * [and] [t]hat on said date, plaintiff failed and refused to accept said valid...
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