SUPREME COURT: COUNTY OF CHAUTAUQUA
THE ESTATE OF MAURO LUCARIELLO
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
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
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
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
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.