| Solomon v Burden |
| 2013 NY Slip Op 01819 [104 AD3d 839] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Philip Solomon et al., Appellants, v Walter H.Burden III et al., Respondents, et al., Defendants. |
—[*1] Sugarman Law, P.C., Deer Park, N.Y. (Shari Lee Sugarman of counsel), forrespondents.
In an action to foreclose a mortgage, the plaintiffs appeal from an order of theSupreme Court, Suffolk County (Rebolini, J.), dated March 5, 2012, which denied theirmotion for summary judgment on the complaint.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motionfor summary judgment on the complaint is granted.
The plaintiffs met their initial burden of establishing their prima facie entitlement toa judgment of foreclosure by producing the mortgage, the note, and evidence of default(see Baron Assoc., LLC vGarcia Group Enters., Inc., 96 AD3d 793, 793 [2012]; GRP Loan, LLC v Taylor, 95AD3d 1172, 1173 [2012]; Citibank, N.A. v Van Brunt Props., LLC, 95 AD3d 1158,1159 [2012]). Accordingly, it was incumbent upon the defendants to produce evidentiaryproof in admissible form sufficient to demonstrate the existence of a triable issue of factas to a bona fide defense "such as waiver, estoppel, bad faith, fraud, or oppressive orunconscionable conduct on the part of the plaintiff[s]" (Mahopac Natl. Bank vBaisley, 244 AD2d 466, 467 [1997]; see Nassau Trust Co. v Montrose ConcreteProds. Corp., 56 NY2d 175, 183 [1982]; Baron Assoc., LLC v Garcia GroupEnters., Inc., 96 AD3d at 793). The respondents failed to raise a triable issue of factconcerning their fraud defense, and they are barred by the parol evidence rule fromintroducing evidence of an alleged oral modification of the note and mortgage whichwould make the note and mortgage relate only to one parcel of property rather than thetwo parcels of property expressly named in the terms of the note and mortgage (see Eastern Sav. Bank, FSB vSassouni, 68 AD3d 917, 918 [2009]; M & T Mtge. Corp. v Ethridge,300 AD2d 286, 287-287 [2002]; Bank of N.Y. v Lockwood Venture Hous., 222AD2d 633 [1995]; cf.Bontempts v Aude Constr. Corp., 98 AD3d 1071, 1072 [2012]; HallawayProps. v Bank of N.Y., 155 AD2d 897 [1989]).
The respondents' remaining contentions are without merit, and the remainingdefendants did not oppose the plaintiffs' motion.
Accordingly, the Supreme Court should have granted the plaintiffs' motion forsummary judgment on the complaint. Mastro, J.P., Austin, Cohen and Miller, JJ., concur.