| Phelps Corp. v Jones |
| 2013 NY Slip Op 05021 [108 AD3d 814] |
| July 3, 2013 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Phelps Corporation, Respondent, v Robert D. Jones, Also Known as Robert Dillard Jones, Appellant, el al., Defendants. |
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Lachman & Gorton, Endicott (Richard D. Mihalkovic of counsel), for
respondent.
Rose, J.P. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered June 14, 2012 in Broome County, which, among other things, granted plaintiff's motion for summary judgment.
Plaintiff commenced this mortgage foreclosure action alleging that defendant defaulted on a note secured by a mortgage on real property. Following joinder of issue, plaintiff moved for summary judgment and defendant cross-moved for dismissal of the complaint. Supreme Court granted plaintiff's motion and denied defendant's cross motion. We now affirm.
Plaintiff produced the indenture conveying title to the property to defendant and containing defendant's valid assumption of the mortgage. Plaintiff also produced the unpaid note and evidence of defendant's default, thus establishing its entitlement to a judgment of foreclosure (see Charter One Bank, FSB v Leone, 45 AD3d 958, 958 [2007]; HSBC Bank USA v Merrill, 37 AD3d 899, 900 [2007], lv dismissed 8 NY3d 967 [2007]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 794 [2002]). The burden then shifted to defendant to demonstrate, with competent and admissible proof, any defense which could raise an issue of fact regarding the default (see LaSalle Bank N.A. v Kosarovich, 31 AD3d 904, 905-906 [2006]; United Cos. Lending Corp. v Hingos, 283 AD2d 764, 765 [2001]). [*2]
Defendant failed to meet this burden. Contrary to his conclusory claims, the assumption clause in the indenture satisfies the requirements of General Obligations Law § 5-705 (see Kane-Miller Corp. v Salkin, 226 AD2d 1028, 1029-1030 [1996]), and the record reveals that the mortgage was validly recorded. Defendant's contention that he adversely possessed the premises is patently without merit. We have examined each of his remaining arguments and agree with Supreme Court that they are likewise meritless. Accordingly, in the absence of a material issue of fact, Supreme Court properly granted plaintiff's motion for summary judgment (see Charter One Bank, FSB v Leone, 45 AD3d at 959; Trustco Bank, Natl. Assn. v Labriola, 246 AD2d 735, 735-736 [1998]).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.