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