Village Bank v. Wild Oaks Holding, Inc.
| Decision Date | 13 September 1993 |
| Parties | VILLAGE BANK, Respondent, v. WILD OAKS HOLDING, INC., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Schwarzfeld, Ganfer & Shore, New York City (Marc D. Powers and Terry S. Hurst, of counsel), for appellants.
Worby, P.C., White Plains (Patrick M. Reilly, of counsel), for respondent.
Before ROSENBLATT, J.P., and LAWRENCE, O'BRIEN and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered January 28, 1993, which (1) granted the plaintiff's motion for summary judgment, (2) denied their cross motion for, inter alia, leave to amend their answer to assert various additional affirmative defenses, counterclaims, and third-party claims, and (3) denied their motion to inter alia, terminate the receivership established by a previous order of the same court.
ORDERED that the plaintiff is awarded one bill of costs.
It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (Metropolitan Distrib. Servs. v. DiLascio, 176 A.D.2d 312, 574 N.Y.S.2d 755; Marton Assocs. v. Vitale, 172 A.D.2d 501, 568 N.Y.S.2d 119). When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to his default (Metropolitan Distrib. Servs. v. DiLascio, supra; Marton Assocs. v. Vitale, supra ).
Upon our examination of the record, we agree with the Supreme Court that the appellants' unsubstantiated, conclusory allegations concerning, inter alia, a personal guaranty regarding repayment of the loan in the event of a default by Wild Oaks Holding, Inc. (hereinafter Wild Oaks), were insufficient to have created a triable issue of fact with respect to the foreclosure of the mortgage (see, Barclays Bank of N.Y. v. Sokol, 128 A.D.2d 492, 512 N.Y.S.2d 419; see also, City of New York v. Grosfeld Realty Co., 173 A.D.2d 436, 570 N.Y.S.2d 61).
Moreover, we find that the Supreme Court did not improvidently exercise its discretion when it denied the appellants' cross motion...
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