| Eastern Sav. Bank, FSB v Sassouni |
| 2009 NY Slip Op 09421 [68 AD3d 917] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Eastern Savings Bank, FSB, Respondent, v SayehSassouni et al., Appellants, et al., Defendant. |
—[*1] Kriss & Feuerstein, LLP, New York, N.Y. (Jerold C. Feuerstein and Jennifer A. Schwartz ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendants Sayeh Sassouni, etc., and VahidKhorshad appeal from a judgment of the Supreme Court, Nassau County (Galasso, J.), enteredOctober 7, 2008, which, upon an order of the same court entered September 23, 2008, inter alia,granting those branches of the plaintiff's motion which were for summary judgment on thecomplaint and to strike their answer, and upon confirming the report of a referee finding that thesum of $2,890,954.21 was due upon a mortgage and promissory note, is in favor of the plaintiffand against them directing a foreclosure and sale of the subject property.
Ordered that the judgment is affirmed, with costs.
The plaintiff met its initial burden of establishing its entitlement to judgment as a matter oflaw by producing the mortgage, the unpaid note, and evidence of default (see Wells FargoBank, N.A. v Webster, 61 AD3d 856 [2009]; Aames Funding Corp. v Houston, 44AD3d 692, 693 [2007]; Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d 482 [2003];Village Bank v Wild Oaks Holding, 196 AD2d 812 [1993]). Accordingly, it wasincumbent on the appellants to produce evidentiary proof in admissible form sufficient todemonstrate the existence of a triable issue of fact as to a bona fide defense (see State Bankof Albany v Fioravanti, 51 NY2d 638, 647 [1980]; Wells Fargo Bank, N.A. vWebster, 61 AD3d at 856; Aames Funding Corp. v Houston, 44 AD3d at 693;Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d at 482; Village Bank v Wild OaksHolding, 196 AD2d at 812). The appellants failed to raise a triable issue of fact concerningtheir fraud defense, and evidence of an alleged oral modification of the applicable interest ratewhich contradicts an express term of the note is barred by the parol evidence rule (see Siegelv Competition Imports, 296 AD2d 540, 542 [2002]; Marine Midland Bank v SimpsonEdson, Inc., 120 AD2d 709, 711 [1986]). Accordingly, the Supreme Court properly grantedthat branch of the plaintiff's motion which was for summary judgment on the complaint.
The appellants' remaining contentions are either without merit or not properly before thisCourt. Fisher, J.P., Covello, Dickerson and Lott, JJ., concur.