Opinion
December 7, 1987
Appeal from the Supreme Court, Rockland County (Edelstein, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff introduced evidence of the existing mortgage agreement and testified that a balance was due in the amount of $60,000, thereby establishing a prima facie case of nonpayment (see, Isaacson v Karpe, 84 A.D.2d 868). The evidence shows that, normally, the defendant made payments of either $462 or $500 when the installments became due. However, the defendant claims that four payments were made totaling $55,000 in increments of two $10,000 payments, one $15,000 and one $20,000 payment. The defendant testified, inter alia, that the plaintiff informed him that the debt was satisfied. The plaintiff denied this. Thus, a sharp issue of credibility existed.
Where, as here, the issue is primarily one of credibility, deference is accorded to the Trial Judge's findings of fact since he is in a better position to assess the truthfulness of the witnesses (see, Van Valen v Ferraro, 114 A.D.2d 621; Umscheid v Simnacher, 106 A.D.2d 380). Here, the Trial Judge found that the testimony of the defendant that he paid the debt was unworthy of belief since there was "not the slightest showing that [he] had sufficient assets or income to make such large lump sum payments". Accordingly, since the plaintiff has made out a prima facie case of nonpayment and the defendant's testimony as to payment was determined to be incredible, the plaintiff has sustained its burden to show nonpayment by a preponderance of the credible evidence (see, Richardson, Evidence § 103, at 82-83 [Prince 10th ed]; 44 N.Y. Jur, Payment, § 156).
The defendant's remaining contentions have been considered and have been found to be without merit. Rubin, J.P., Kooper, Sullivan and Harwood, JJ., concur.