Sullivan County National Bank v. Mason , 413 N.Y.S.2d 499 ( 1979 )

— Appeal from an order of the County Court of Sullivan County at Special Term, entered November 8, 1978, which granted a motion by plaintiff for summary judgment. On December 12, 1975, a mortgage was executed by Irving Mason and Gussie Mason, doing business as Mason Management Company, a partnership. Also on this date, a lease, wherein the mortgagors leased the mortgaged premises to Foxcroft Village, Inc., was assigned to plaintiff, the mortgagee, as collateral security. The lease was subordinated to the lien of plaintiff’s mortgage. On November 7, 1977, the lease, after default by appellants, was reassigned to the Mason Management Company. Dispossess proceedings were thereafter commenced against Fox-croft Village, Inc., and a final order of eviction was granted against the lessee. Subsequently, this action was commenced to foreclose the mortgage. In their answer, appellants Foxcroft Village, Inc., and Wolpo alleged as a defense and counterclaim that plaintiff and certain of the defendants entered into a conspiracy to evict the lessee from the leased premises and in furtherance of said conspiracy the plaintiff reassigned the lease to Mason Management Company on November 7, 1977. Plaintiff’s motion for summary judgment was granted and defendants’ answers were stricken. This appeal ensued. In our view, plaintiff had made out a prima facie case and it was incumbent on appellants to assemble, lay bare and reveal their proofs in order to show that their defense was real and capable of being established upon trial (Thrift Credit Corp. v American Overseas Trading Corp., 54 AD2d 994). The assertion of a counterclaim, unsupported by proof that it is meritorious, does not bar summary judgment for a plaintiff who is otherwise entitled to it and appellants were required to reveal their proof in support of the alleged counterclaim (M & S Mercury Air Conditioning Corp. v Rodolitz, 24 AD2d 873, affd 17 NY2d 909). Upon consideration of the record, it is the opinion of this court that appellants failed to meet their burden and, therefore, summary judgment in favor of plaintiff was properly granted. Order affirmed, with costs. Mahoney, P. J., Greenblott, Sweeney, Kane and Main, JJ., concur.