Zanfini v. Chandler
| Decision Date | 21 December 2010 |
| Citation | 79 A.D.3d 1031,912 N.Y.S.2d 911 |
| Parties | Ronald ZANFINI, appellant, v. Garnette Shay CHANDLER, et al., respondents, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
Jane M. Myers, P.C., Central Islip, N.Y. (James E. Robinson of counsel), for appellant.
James D. Reddy, P.C., Lindenhurst, N.Y., for respondent Garnette Shay Chandler.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), entered February 17, 2010, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs to the respondent Garnette Shay Chandler.
"Entitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to themortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact" ( HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900, 830 N.Y.S.2d 598; see Household Fin. Realty Corp. of N.Y. v. Winn, 19 A.D.3d 545, 796 N.Y.S.2d 533; Sears Mtge. Corp. v. Yaghobi, 19 A.D.3d 402, 796 N.Y.S.2d 392; Ocwen Fed. Bank FSB v. Miller, 18 A.D.3d 527, 794 N.Y.S.2d 650). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note,and evidence of default. However, in opposition, the respondents raised triable issues of fact with respect to, inter alia, the validity of the mortgage and the alleged usurious nature of the note ( see Freitas v. Geddes Sav. & Loan Assn., 63 N.Y.2d 254, 262, 481 N.Y.S.2d 665, 471 N.E.2d 437; Abir v. Malky, Inc., 59 A.D.3d 646, 649, 873 N.Y.S.2d 350; Sudit v. Schapiro, 57 A.D.3d 968, 968-969, 872 N.Y.S.2d 140; Campaign v. Barba, 23 A.D.3d 327, 805 N.Y.S.2d 86; Hort v. Devine, 1 A.D.3d 266, 769 N.Y.S.2d 376).
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