Opinion
02-17-2016
Scott GRODSKY, respondent, v. Francine J. MOORE, et al., appellants, et al., defendants.
Fredrick P. Stern, P.C., Islip, N.Y., for appellants. Alan M. Wolinsky, Lake Ronkonkoma, N.Y., for respondent.
Fredrick P. Stern, P.C., Islip, N.Y., for appellants.
Alan M. Wolinsky, Lake Ronkonkoma, N.Y., for respondent.
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 A.D.3d 830, 830, 7 N.Y.S.3d 146 ; Fleet Natl. Bank v. Olasov, 16 A.D.3d 374, 374, 793 N.Y.S.2d 52 ). 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 A.D.3d 1031, 1032, 912 N.Y.S.2d 911 ; cf. Chiarelli v. Kotsifos, 5 A.D.3d 345, 346, 772 N.Y.S.2d 531 ; Tower Funding v. Berry Realty, 302 A.D.2d 513, 514–515, 755 N.Y.S.2d 413 ). 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.