Supreme Court, Appellate Division, Second Department, New York.
PRUDENTIAL HOME MORTGAGE COMPANY, INC., etc., Appellant,
v.
Mario CERMELE, et al., Respondents, et al., Defendants.
April 1, 1996.
Mortgagee sued to foreclose, and mortgagors asserted estoppel defense. The
Supreme Court, Westchester County, Donovan, J., entered order denying
mortgagee's motion for summary judgment, and mortgagee appealed. The Supreme
Court, Appellate Division, held that mortgagors' bare and unsubstantiated
assertions regarding oral promise allegedly made by mortgagee's employee to
reinstate mortgage were not sufficient to raise any genuine issues of material
fact on mortgagors' estoppel defense.
Reversed and remitted.
West Headnotes
[1] Judgment 185(2)
228k185(2) Most Cited Cases
Party moving for summary judgment must make prima facie showing of its
entitlement to judgment as matter of law, by tendering sufficient evidence to
demonstrate absence of any material issues of fact.
[2] Judgment 185(2)
228k185(2) Most Cited Cases
Once party moving for summary judgment has made prima facie showing of its
entitlement to judgment, burden shifts to party opposing motion to produce
evidentiary proof in admissible form sufficient to establish existence of
material issues of fact which require trial.
[3] Judgment 181(25)
228k181(25) Most Cited Cases
Mortgagors' bare and unsubstantiated assertions that mortgagee's employee had
orally agreed to reinstate their mortgage were not sufficient, either by
themselves or in conjunction with mortgagors' written offer to pay arrears, to
raise any genuine issue of material fact on estoppel claim raised by mortgagors
to preclude entry of summary judgment in mortgage foreclosure action.
[4] Mortgages 408
266k408 Most Cited Cases
When mortgagor is attempting to assert estoppel against mortgagee who has
instituted foreclosure action, mortgagor must produce evidentiary proof in
admissible form sufficient to require trial of that defense; mere conclusions,
expressions of hope, or unsubstantiated allegations or assertions are not
sufficient.
[5] Mortgages 408
266k408 Most Cited Cases
Mortgagee was not estopped from foreclosing on mortgagors' long-overdue
mortgage, without regard to sufficiency of mortgagors' bare and unsubstantiated
assertions that mortgagee's employee had orally agreed to reinstate mortgage,
given complete lack of evidence that mortgagors had made any prejudicial change
in their position in reliance on agent's alleged statements.
**255 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and
Douglas Tischler, of counsel), for appellant.
Marcus, Rippa & Gould, White Plains (Vincent R. Rippa, of counsel), for
respondents.
Before COPERTINO, J.P., and PIZZUTO, FRIEDMANN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose on a mortgage, the plaintiff appeals from so much of
an order of the Supreme Court, Westchester County (Donovan, J.), entered
December 15, 1994, as denied the branches of its motion which were for summary
judgment on the complaint insofar as asserted against the defendants Mario
Cermele and Valerie Cermele and to appoint a referee pursuant to RPAPL 1321.
ORDERED that the order is reversed insofar as appealed from, on the law, with
costs, the branches of the plaintiff's motion which were for summary judgment on
the complaint insofar as asserted against the defendants Mario Cermele and
Valerie Cermele and to appoint a referee pursuant to RPAPL 1321 are granted, and
the matter is remitted to the Supreme Court, Westchester County, for further
proceedings consistent herewith.
[1][2] The proponent of a summary judgment motion "must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of fact" (Alvarez v.
Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Once
the movant has demonstrated a prima facie showing of entitlement to judgment,
the burden shifts to the party opposing the motion to produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of
fact which require a trial of the action (see, Zuckerman v. City of New York, 49
N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Alvarez v. Prospect Hosp.,
supra ).
[3][4][5] The plaintiff mortgagee made a prima facie showing of entitlement to
summary judgment. However, contrary to the defendants' contention, their
proof, consisting of bare unsubstantiated contentions that the plaintiff's
employee orally agreed to reinstate their mortgage, and the defendants' letter
to the plaintiff's attorneys wherein the defendants made an offer to pay
arrears, is insufficient to create an issue of fact as to whether the plaintiff
entered into a modification agreement with the defendants so as to estop the
plaintiff from foreclosing on the long-**256 overdue mortgage. When a mortgagor
is attempting to assert estoppel against a mortgagee who has instituted a
foreclosure the mortgagor must produce "evidentiary proof in admissible form * *
* sufficient to require a trial [of that defense] * * * mere conclusions,
expressions of hope, unsubstantiated *358 allegations or assertions are
insufficient" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d
595, 404 N.E.2d 718, supra; State Bank of Albany v. Fioravanti, 51 N.Y.2d 638,
647, 435 N.Y.S.2d 947, 417 N.E.2d 60). Nor have the defendants alleged any
prejudicial change in their position in reliance upon the plaintiff's conduct so
as to sustain a prima facie defense of estoppel (see, BWA Corp. v. Alltrans
Express U.S.A., 112 A.D.2d 850, 853, 493 N.Y.S.2d 1; Southold Sav. Bank v.
Cutino, 118 A.D.2d 555, 499 N.Y.S.2d 169). Thus, the plaintiff was not
estopped from maintaining the foreclosure action.
We have reviewed the defendants' remaining contentions and find them to be
without merit.
640 N.Y.S.2d 254, 226 A.D.2d 357
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.PRUDENTIAL HOME MORTGAGE COMPANY, INC., etc., Appellant,v.Mario CERMELE, et al., Respondents, et al., Defendants.
April 1, 1996.
Mortgagee sued to foreclose, and mortgagors asserted estoppel defense. The Supreme Court, Westchester County, Donovan, J., entered order denying mortgagee's motion for summary judgment, and mortgagee appealed. The Supreme Court, Appellate Division, held that mortgagors' bare and unsubstantiated assertions regarding oral promise allegedly made by mortgagee's employee to reinstate mortgage were not sufficient to raise any genuine issues of material fact on mortgagors' estoppel defense.
Reversed and remitted.
West Headnotes
[1] Judgment 185(2)228k185(2) Most Cited Cases
Party moving for summary judgment must make prima facie showing of its entitlement to judgment as matter of law, by tendering sufficient evidence to demonstrate absence of any material issues of fact.
[2] Judgment 185(2)228k185(2) Most Cited Cases
Once party moving for summary judgment has made prima facie showing of its entitlement to judgment, burden shifts to party opposing motion to produce evidentiary proof in admissible form sufficient to establish existence of material issues of fact which require trial.
[3] Judgment 181(25)228k181(25) Most Cited Cases
Mortgagors' bare and unsubstantiated assertions that mortgagee's employee had orally agreed to reinstate their mortgage were not sufficient, either by themselves or in conjunction with mortgagors' written offer to pay arrears, to raise any genuine issue of material fact on estoppel claim raised by mortgagors to preclude entry of summary judgment in mortgage foreclosure action.
[4] Mortgages 408266k408 Most Cited Cases
When mortgagor is attempting to assert estoppel against mortgagee who has instituted foreclosure action, mortgagor must produce evidentiary proof in admissible form sufficient to require trial of that defense; mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are not sufficient.
[5] Mortgages 408266k408 Most Cited Cases
Mortgagee was not estopped from foreclosing on mortgagors' long-overdue mortgage, without regard to sufficiency of mortgagors' bare and unsubstantiated assertions that mortgagee's employee had orally agreed to reinstate mortgage, given complete lack of evidence that mortgagors had made any prejudicial change in their position in reliance on agent's alleged statements. **255 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and Douglas Tischler, of counsel), for appellant.
Marcus, Rippa & Gould, White Plains (Vincent R. Rippa, of counsel), for respondents.
Before COPERTINO, J.P., and PIZZUTO, FRIEDMANN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose on a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered December 15, 1994, as denied the branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants Mario Cermele and Valerie Cermele and to appoint a referee pursuant to RPAPL 1321.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Mario Cermele and Valerie Cermele and to appoint a referee pursuant to RPAPL 1321 are granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.
[1][2] The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Alvarez v. Prospect Hosp., supra ).
[3][4][5] The plaintiff mortgagee made a prima facie showing of entitlement to summary judgment. However, contrary to the defendants' contention, their proof, consisting of bare unsubstantiated contentions that the plaintiff's employee orally agreed to reinstate their mortgage, and the defendants' letter to the plaintiff's attorneys wherein the defendants made an offer to pay arrears, is insufficient to create an issue of fact as to whether the plaintiff entered into a modification agreement with the defendants so as to estop the plaintiff from foreclosing on the long-**256 overdue mortgage. When a mortgagor is attempting to assert estoppel against a mortgagee who has instituted a foreclosure the mortgagor must produce "evidentiary proof in admissible form * * * sufficient to require a trial [of that defense] * * * mere conclusions, expressions of hope, unsubstantiated *358 allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718, supra; State Bank of Albany v. Fioravanti, 51 N.Y.2d 638, 647, 435 N.Y.S.2d 947, 417 N.E.2d 60). Nor have the defendants alleged any prejudicial change in their position in reliance upon the plaintiff's conduct so as to sustain a prima facie defense of estoppel (see, BWA Corp. v. Alltrans Express U.S.A., 112 A.D.2d 850, 853, 493 N.Y.S.2d 1; Southold Sav. Bank v. Cutino, 118 A.D.2d 555, 499 N.Y.S.2d 169). Thus, the plaintiff was not estopped from maintaining the foreclosure action.
We have reviewed the defendants' remaining contentions and find them to be without merit.
640 N.Y.S.2d 254, 226 A.D.2d 357
END OF DOCUMENT