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Phelps Corp. v. Jones

Supreme Court of New York, Third Department

July 3, 2013

PHELPS CORPORATION, Respondent,
v.
ROBERT D. JONES, Also Known as ROBERT DILLARD JONES, Appellant, et al., Defendants.

Calendar Date: May 21, 2013

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.

Robert D. Jones, Binghamton, appellant pro se.

Lachman & Gorton, Endicott (Richard D. Mihalkovic of counsel), for respondent.

Before: Rose, J.P., Spain, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

Rose, J.P.

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 A.D.3d 958, 958 [2007]; HSBC Bank USA v Merrill, 37 A.D.3d 899, 900 [2007], lv dismissed 8 N.Y.3d 967 [2007]; Fleet Bank v Pine Knoll Corp., 290 A.D.2d 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 Natl. Assn. v Kosarovich, 31 A.D.3d 904, 905-906 [2006]; United Cos. Lending Corp. v Hingos, 283 A.D.2d 764, 765 [2001]).

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 A.D.2d 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 A.D.3d at 959; Trustco Bank, Natl. Assn. v Labriola, 246 A.D.2d 735, 735-736 [1998]).

Spain, McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.


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