Opinion
March 11, 1971
Order, Supreme Court, Bronx County, entered on February 6, 1970, denying plaintiff's motion for summary judgment, unanimously reversed on the law, the motion granted and the action remanded to Special Term for further proceedings. Appellant shall recover of respondent $50 costs and disbursements of this appeal. In this action to foreclose a second mortgage, the complaint alleged an antecedent indebtedness to plaintiff and alleged that the bond and mortgage was delivered to plaintiff for a valuable consideration. Defendant interposed a general denial. Thereafter in opposition to a motion for summary judgment defendant claimed duress and a lack of consideration. Where, as here, the cause of action is based on documentary evidence, the authenticity of which is not disputed, a general denial, without more, will not suffice to raise an issue of fact. The bond and mortgage were executed July 21, 1964, and a series of payments was made thereafter up to and including October 27, 1967. In fact, after execution of the documents defendant, in writing, on later occasions acknowledged the obligation. A claim of duress or mistake some four years after the act is not persuasive in light of this record, nor was it raised in the pleading (see CPLR 3018, subd. [b]). Moreover, aside from the allegations of the complaint, the recitals of consideration in the instruments prima facie establish consideration. A bare denial, unsupported by evidence to the contrary, is insufficient to create a factual issue.
Concur — Stevens, P.J., Capozzoli, McGivern, Nunez and McNally, JJ.