New York State Supreme Court, Appellate Division, Fourth Judicial Department
Affidavit of prior payments and reliance thereto
Appealed from Supreme Court, Chautauqua County
Background: The plaintiff commenced a foreclosure action after the defendants stopped paying on a note that was secured by a mortgage on real property. Based on a 2008 affidavit by the plaintiff’s former attorney, which claimed the defendant forwarded funds to him in order to pay off his mortgage, the court vacated the judgement of foreclosure and restored the matter to the calendar. Thereafter, the plaintiff obtained an affirmation from the 2008 attorney which stated that the statement he made in his 2008 affidavit was in error and that the defendant paid off their arrears at that time, but not paid off the note in full. The defendants appeal from the judgment of foreclosure.
Ruling: The Appellate Division affirmed. The court held that the affidavit of one of the defendants asserting that it was his understanding that the mortgage and note were satisfied in 2008 and that he relied on the 2008 affidavit is insufficient to raise an issue of fact as the statements are conclusory.
John J. Keenan for the defendants-appellants; Margaret J. Cascino, of McGlinchey Stafford, for the plaintiff-respondent.