Grodsky v. Moore ( 2016 )

Grodsky v Moore (2016 NY Slip Op 01153)

Grodsky v Moore

2016 NY Slip Op 01153

Decided on February 17, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 17, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.

2013-11208
(Index No. 21253/11)

[*1]Scott Grodsky, respondent,

v

Francine J. Moore, et al., appellants, et al., defendants.

Fredrick P. Stern, P.C., Islip, NY, for appellants.

Alan M. Wolinsky, Lake Ronkonkoma, NY, for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Francine J. Moore and Rodney Tramantano appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated August 23, 2013, as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendants Francine J. Moore and Rodney Tramantano is denied.

In this mortgage foreclosure action, the plaintiff established his prima face entitlement to judgment as a matter of law by submitting the mortgage, the unpaid note, and evidence of the mortgagor's default (see Aurora Loan Servs., LLC v Enaw, 126 AD3d 830, 830; Fleet Natl. Bank v Olasov, 16 AD3d 374, 374). However, in opposition to the plaintiff's prima facie showing, the appellants raised a triable issue of fact with respect to their affirmative defense alleging usury (see Zanfini v Chandler, 79 AD3d 1031, 1032; cf. Chiarelli v Kotsifos, 5 AD3d 345, 346; Tower Funding v Berry Realty, 302 AD2d 513, 514-515). Accordingly, that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellants should have been denied.

LEVENTHAL, J.P., CHAMBERS, COHEN and HINDS-RADIX, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court