Champion Mtge. Co. v Elmore
2004 NY Slip Op 01463 [5 AD3d 140]
March 4, 2004
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 26, 2004


Champion Mortgage Co., Inc., Respondent,
v
Winford Elmore, Appellant, et al., Defendant.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered February 7, 2003, which, in this mortgage foreclosure action, granted the motion of plaintiff for summary judgment foreclosing on the mortgage and striking defendant's affirmative defenses, and referred the matter to a referee to compute all amounts due to plaintiff, unanimously affirmed, without costs.

The motion court correctly granted plaintiff's motion for summary judgment foreclosing on the mortgage based upon defendant's failure to make the required monthly payments. Defendant's affirmative defense of fraud, predicated upon oral representations at odds with the plain and unambiguous terms of the note and the payment reduction provision subsequently signed by him, was properly struck (see Mariani v Dyer, 193 AD2d 456, 457 [1993], lv denied 82 NY2d 658 [1993]; Humble Oil & Ref. Co. v Jaybert Esso Serv. Sta., 30 AD2d 952 [1968]).

We have considered defendant's remaining arguments and find them unavailing. Concur—Nardelli, J.P., Andrias, Sullivan and Lerner, JJ.