Delta Funding Corp. v. Yaede , 702 N.Y.S.2d 854 ( 2000 )

—In an action to foreclose a mortgage, the defendant Elaine Marta, as executor of the estate of Winifred Yaede, appeals from an order of the Supreme Court, Dutchess County (Bernhard, J.), dated November 20, 1998, which, inter alla, granted the plaintiffs motion for summary judgment on the complaint against her and for a writ of assistance.

Ordered that the order is affirmed, with costs.

The plaintiff established its entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage and mortgage note, and evidentiary proof of the mortgagor’s default in payment (see, Kowalski Enters. v Sem Intl., 250 AD2d 648; Lavi v Hamedani, 234 AD2d 428). The appellant failed to establish the existence of a material issue of fact in opposition to the plaintiffs motion.

The appellant contends that the decedent was deceived into executing the mortgage documents by her son, the defendant Raymond A. Yaede, who allegedly received the proceeds of the mortgage loan. However, there is no evidence that the plaintiff had any relationship with Raymond, or participated in or had knowledge of Raymond’s alleged scheme to defraud the decedent. Under these circumstances, Raymond’s alleged fraud is not a defense to foreclosure (see, Miller Planning Corp. v Wells, 253 AD2d 859).

There is no evidence that a prior motion for a writ of assistance was withdrawn by the plaintiff. It is undisputed that an application for a writ of assistance was pending in 1998. Accordingly, the Supreme Court properly granted that relief (see, e.g., Lincoln First Bank v Polishuk, 86 AD2d 652). Bracken, J. P., Santucci, Thompson and S. Miller, JJ., concur.