IMC Mortgage Co. v. Griggs , 733 N.Y.S.2d 918 ( 2001 )

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated September 28, 2000, which denied its motion for summary judgment on the issue of liability against the defendant Amy Griggs, a/k/a Amy L. Griggs, and granted the cross motion of that defendant for discovery and inspection.

Ordered that the order is affirmed, with costs.

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by producing the mortgage and note, and submitting proof of non-payment (see, North Fork Bank v Hamptons Mist Mgt. Corp., 225 AD2d 596). In response, the defendant mortgagor, Amy Griggs, a/k/a Amy L. Griggs, submitted an affidavit of her sister in which it was contended that Amy Griggs lacked the capacity to sign the mortgage and note, and that her signature on the documents had been forged. CPLR 3212 (f) permits a court to deny a motion for summary judgment where "facts essential to justify opposition may exist but cannot then be stated.” Based on this affidavit, the Supreme Court properly denied the motion for summary judgment and granted the cross motion for discovery and inspection (see, Adelman v Island Holding Corp., 157 AD2d 637). Santucci, J. P., S. Miller, Luciano and Smith, JJ., concur.