Opinion
February 22, 1994
Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).
The IAS Court properly granted summary judgment to plaintiff mortgagee. Plaintiff established, by documentary evidence, that defendant had defaulted on scheduled payments of obligations for which he was personally liable and which were secured by the subject consolidated mortgage. By contrast, defendant failed to come forward with adequate proof in admissible form to require a trial of material issues of fact as to the opposing claims of overreaching and undue influence on the part of plaintiff and "unclean hands", on the part of plaintiff's husband. Defendant failed to produce any documentary proof that plaintiff's husband, who drafted the instruments in question, had in fact, acted as defendant's attorney with respect to these transactions. Moreover, except for defendant's conclusory averments, no proof was adduced to demonstrate plaintiff's husband had misrepresented the recourse nature of the instrument upon which defendant ultimately defaulted.
Concur — Sullivan, J.P., Ellerin, Williams and Tom, JJ.