Opinion
March 27, 1995
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is affirmed, with costs.
In support of its motion for summary judgment, Fleet Bank (hereinafter Fleet) established its case as a matter of law (see, Marine Midland Bank v. Freedom Rd. Realty Assocs., 203 A.D.2d 538; LBV Prop. v. Greenport Dev. Co., 188 A.D.2d 588, 589). It thus became incumbent upon the defendant Clarence R. Banks to assert any defenses which would raise a question of fact about the default on the mortgage, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of Fleet (see, Marine Midland Bank v. Freedom Rd. Realty Assocs., supra, at 538, quoting Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183). Accepting Banks' proof as true and giving him the benefit of every favorable inference (see, Marine Midland Bank v. Malmstrom, 186 A.D.2d 722, 723), we conclude that he has created an issue of fact as to the existence of valid defenses to enforcement of the mortgage loan as written. Indeed, Banks' affidavit in opposition to Fleet's summary judgment motion contained detailed facts and included supporting documentation regarding the parties' alleged oral modification of the terms of the subject mortgage loan (see, Bank of N.Y. v Midland Ave. Dev., 193 A.D.2d 641, 642; cf., City of New York v Grosfeld Realty Co., 173 A.D.2d 436; cf., Flintkote Co. v. Bert Bar Holding Corp., 114 A.D.2d 400). Accordingly, since Banks' allegations are sufficient to create an issue of fact warranting a trial, the Supreme Court properly denied Fleet's summary judgment motion.
The parties' remaining contentions are either raised for the first time on appeal or without merit. Copertino, J.P., Pizzuto, Joy and Friedmann, JJ., concur.