STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

THE ESTATE OF MAURO LUCARIELLO

Plaintiff,

vs INDEX NO. H-09436

STEPHEN A. LUCARIELLO, AND

WANDA R. LUCARIELLO; GIER'S

FARM SERVICE, INC.; THE UNITED

STATES OF AMERICA; AND JOHN

DOE AND/OR MARY ROE

Defendant.

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RHINEHART, WHITE & STEGER

(Randy E. Rhinehart, Esq

of Council) for Plaintiff

FOLEY, FOLEY & PASSAFARO

(Albert W. Foley, Esq.

of Counsel) for Defendant

DECISION AND ORDER

March 11, 1996

GERACE, J.

Plaintiff moves for summary judgment in this mortgage

foreclosure action. Decedent was a mortgagee on an

instrument given by defendants Stephen and Wanda

Lucariello. Defendant Gier's Farm Service, Inc. holds a

second mortgage and contends that the statute of

limitations bars plaintiff's foreclosure on the ground that

Stephen and Wanda made no payments within the six years

prior to the institution of the foreclosure action.

Stephen Lucariello contends that payments made to

decedent through Eastern Milk Producers monthly milk

payments were to apply on the mortgage.

Plaintiff offers fourteen canceled checks as proof of

payments on the mortgage, checks covering December 1989 to

January 1991. There is no indication those checks were to

apply on the mortgage.

There appears to be a triable issue of fact as to

whether the payments made from the Stephen A. Lucariello

milk check to decedent and the fourteen canceled checks

were to apply to the first mortgage given by him to

decedent.

At the trial, it will be the defendant's burden to

sustain the defense of the statute of limitations. See

CPLR 3018(b) DavidA.Siegel,NewYorkPractice, Section

223 Affirmative Defenses, 325. It is possible no payments

were ever made to apply on the mortgage. The amended

complaint demands the face amount of the mortgage as though

no payments had been made on it.

The motion for summary judgment is denied, without

prejudice and without cost.

The signing, filing, and mailing of a copy by the

Court of this Decision and Order to all Counsel shall not

constitute notice of entry required by CPLR 2220. Counsel

are not relieved from the applicable provisions of that

section respecting notice of entry.

THIS IS THE DECISION AND ORDER OF THIS COURT.

Dated: March 11, 1996

Mayville, New York

_________________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.