Bankers Trust of Rockland County v. Keesler

In a mortgage foreclosure action, plaintiff appeals from an order of the County Court, Rockland County, dated January 29, 1975, which denied its motion for summary judgment. Order reversed, on the law, with $20 costs and disbursements, and motion granted. While Special Term correctly found that respondents’ affirmative defense concerning the execution of the mortgage was insufficient, it erred in holding that the general denial by respondents, in their answer, of the execution of the mortgage was sufficient to raise a triable issue. The contention raised by respondents in their affidavit in opposition to the motion for summary judgment deals with the affirmative defense which alleges that they signed a mortgage other than the one which they expected to sign. Nowhere in their opposing affidavit do they dispute the validity of their signatures. The mere general denial by them of the paragraph of the complaint which alleges the execution of the bond and mortgage is not sufficient to defeat plaintiff’s motion for summary judgment. Special Term also incorrectly held that respondents’ third affirmative defense raises a substantial issue. Although there appears to have been an offer by plaintiff to release certain lots covered by the mortgage, there was a failure to accept that offer within a reasonable period, during which time respondents defaulted in the payment on the mortgage. As there are no triable issues of fact, plaintiff’s motion for summary judgment should have been granted. Rabin, Acting P. J., Hopkins, Christ, Munder and Shapiro, JJ., concur.