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Delta Funding Corporation v. Yaede

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 2000
268 A.D.2d 554 (N.Y. App. Div. 2000)

Opinion

Submitted December 16, 1999

January 31, 2000

In an action to foreclose a mortgage, the defendant Elaine Marta, as executor of the estate of Winifred Yaede, appeals from an order of the Supreme Court, Dutchess County (Bernhard, J.), dated November 20, 1998, which, inter alia, granted the plaintiff's motion for summary judgment on the complaint against her and for a writ of assistance.

Denton McLaughlin, P.C., Pawling, N.Y. (Kevin A. Denton of counsel), for appellant.

Hal B. Greenwald, Yonkers, N.Y., for respondent.

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON, SONDRA MILLER, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff established its entitlement to judgment as a matter of law by submitting proof of the existence of the mortgage and mortgage note, and evidentiary proof of the mortgagor's default in payment (see, Kowalski Enters. v. Sem Intl., 250 A.D.2d 648 ; Lavi v. Hamedani, 234 A.D.2d 428 ). The appellant failed to establish the existence of a material issue of fact in opposition to the plaintiff's motion.

The appellant contends that the decedent was deceived into executing the mortgage documents by her son, the defendant Raymond A. Yaede, who allegedly received the proceeds of the mortgage loan. However, there is no evidence that the plaintiff had any relationship with Raymond, or participated in or had knowledge of Raymond's alleged scheme to defraud the decedent. Under these circumstances, Raymond's alleged fraud is not a defense to foreclosure (see, Miller Planning Corp. v. Wells, 253 A.D.2d 859 ).

There is no evidence that a prior motion for a writ of assistance was withdrawn by the plaintiff. It is undisputed that an application for a writ of assistance was pending in 1998. Accordingly, the Supreme Court properly granted that relief (see, e.g., Lincoln First Bank v. Polishuk, 86 A.D.2d 652 ).

BRACKEN, J.P., SANTUCCI, THOMPSON, and S. MILLER, JJ., concur.


Summaries of

Delta Funding Corporation v. Yaede

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 2000
268 A.D.2d 554 (N.Y. App. Div. 2000)
Case details for

Delta Funding Corporation v. Yaede

Case Details

Full title:DELTA FUNDING CORPORATION, respondent, v. RAYMOND A. YAEDE, defendant…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 31, 2000

Citations

268 A.D.2d 554 (N.Y. App. Div. 2000)
702 N.Y.S.2d 854

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