Federal Deposit Insurance Corp.v.Eisner

Appellate Division of the Supreme Court of New York, Second DepartmentOct 24, 1994
208 A.D.2d 799 (N.Y. App. Div. 1994)
208 A.D.2d 799618 N.Y.S.2d 71

October 24, 1994

Appeal from the Supreme Court, Kings County (Ramirez, J.).


Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

When a plaintiff moves for summary judgment, the court may properly look beyond the defendant's answer and deny summary judgment if facts are alleged in opposition to the motion which, if true, would constitute a meritorious defense (see, Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 182; Curry v. Mackenzie, 239 N.Y. 267; Johnson v. Gaughan, 128 A.D.2d 756). The defendants have submitted documentary evidence showing that they notified the plaintiff in writing of their election to extend the original March 1, 1991, maturity date of the mortgage for five years, and that the plaintiff had accepted five payments made after that date before returning the defendants' August 1991 payment without explanation.

We find the defendants' submissions to be factual in nature and sufficiently detailed to present triable issues of fact as to whether the maturity date of the mortgage was extended (see, Nassau Trust Co. v. Montrose Concrete Prods. Corp., supra; Flintkote Co. v. Bert Bar Holding Corp., 114 A.D.2d 400; New York State Urban Dev. Corp. v. Garvey Brownstone Houses, 98 A.D.2d 767). As for the plaintiff's claim that the defendants failed to lay a proper evidentiary foundation for the introduction of the alleged mortgage extension clause, we note that this issue is unpreserved for appellate review (see, Telaro v. Telaro, 25 N.Y.2d 433, 439; Key Bank v. Burns, 162 A.D.2d 501, 502). Pizzuto, J.P., Santucci, Hart and Goldstein, JJ., concur.