| Zanfini v Chandler |
| 2010 NY Slip Op 09507 [79 AD3d 1031] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Ronald Zanfini, Appellant, v Garnette Shay Chandler et al.,Respondents, et al., Defendants. |
—[*1] 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 summaryjudgment 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 amortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor'sdefault, thereby shifting the burden to the mortgagor to demonstrate, through both competent andadmissible evidence, any defense which could raise a question of fact" (HSBC Bank USA v Merrill, 37 AD3d899, 900 [2007]; see Household Fin.Realty Corp. of N.Y. v Winn, 19 AD3d 545 [2005]; Sears Mtge. Corp. v Yaghobi, 19 AD3d 402 [2005]; Ocwen Fed. Bank FSB v Miller, 18 AD3d527 [2005]). Here, the plaintiff established his prima facie entitlement to judgment as a matter oflaw by submitting the mortgage, the unpaid note, and evidence of default. However, in opposition, therespondents raised triable issues of fact with respect to, inter alia, the validity of the mortgage and thealleged usurious nature of the note (see Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254,262 [1984]; Abir v Malky, Inc., 59AD3d 646, 649 [2009]; Sudit vSchapiro, 57 AD3d 968, 968-969 [2008]; Campaign v Barba, 23 AD3d 327 [2005]; Hort v Devine, 1 AD3d 266 [2003]).Covello, J.P., Angiolillo, Dickerson and Belen, JJ., concur. [Prior Case History: 26 Misc 3d1239(A), 2010 NY Slip Op 50465(U).]