Coaxum v. Granville

Coaxum v Granville (2021 NY Slip Op 00108)

Coaxum v Granville

2021 NY Slip Op 00108

Decided on January 12, 2021

Appellate Division, First 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 and Entered: January 12, 2021
Before: Acosta, P.J., Webber, González, Scarpulla, JJ.

Index No. 850149-19 Appeal No. 12847 Case No. 2020-02081

[*1]Donald Coaxum, Plaintiff-Appellant,

v

Maria Granville, Defendant-Respondent, New York City Parking Violations Bureau, et al., Defendants.

Jason Chang, New York, for appellant.

The Law Office of Debra Hoskins, Queens Village (Debra Hoskins of counsel), for respondent.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 6, 2020, which denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

Plaintiff met his prima facie burden by producing the mortgage documents and evidence of defendant's default, shifting the burden to defendant to raise a triable issue of fact regarding her affirmative defenses to foreclosure (see Wilmington Trust v Sukhu, 155 AD3d 591, 591-592 [1st Dept 2017]). Defendant raised a triable issue of fact regarding the June 2019 payment. Based on the disputed facts offered by the parties, it is submitted that determination of whether the June 2019 payment was tendered is ultimately a factual and credibility determination that cannot be made at this stage (see Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 12, 2021