North Fork Bank v. Hamptons Mist Management Corp.

• Decision Date: 11 March 1996
• Citation: 225 A.D.2d 596,639 N.Y.S.2d 451
• Parties: NORTH FORK BANK, etc., Respondent, v. HAMPTONS MIST MANAGEMENT CORP., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 451

639 N.Y.S.2d 451

225 A.D.2d 596

NORTH FORK BANK, etc., Respondent, v. HAMPTONS MIST MANAGEMENT CORP., et al., Appellants, et al Defendants.

Supreme Court, Appellate Division Second Department.

March 11, 1996.

Neufeld & O'Leary, New York City (David S.J. Neufeld and Adam W. Rhys, of counsel), for appellants.

Albanese, Albanese & Fiore, LLP, Garden City (Thomas G. Sherwood and Diana C. Prevete, of counsel), for respondent.

Before SULLIVAN, J.P., and SANTUCCI, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendants Hamptons Mist Management Corp. and Leonard Rosen appeal, as limited by their brief, from so much of an (1) order of the Supreme Court, Suffolk County (Cohalan, J.), dated June 28, 1994, as granted the branches of the plaintiff's motion which were for summary judgment and to strike their answer and counterclaim, and (2) a resettled order of the same court, dated July 21, 1994, as granted the branches of the plaintiff's motion which were for summary judgment and to strike their answer and counterclaims.

ORDERED that the appeal from the order dated June 28, 1994, is dismissed, as that order was superseded by the resettled order dated July 21, 1994; and it is further,

ORDERED that the resettled order dated July 21, 1994, is affirmed insofar as appealed from; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

In its motion, inter alia, 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, 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; see also, North Fork Bank v. Hamptons Mist Management Corp., 225 A.D.2d 595, 639 N.Y.S.2d 452 [Appeal Nos. 94-07499 and 94-08870, decided herewith]; North Fork Bank v. Rosen, 225 A.D.2d 598, 639 N.Y.S.2d...