Green Point Savings Bank v. Tornheim

May 3, 1999
Versions:261 A.D.2d 360
689 N.Y.S.2d 193
1999 N.Y. App. Div. LEXIS 4494

—In an action to foreclose a mortgage, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Garson, J.), entered June 26, 1997, which, inter alia, is in favor of the plaintiff and against him, directing the sale of the subject real property.

Ordered that the order and judgment is affirmed, with costs.

The judgment of foreclosure and sale was properly entered in favor of the plaintiff. The plaintiff established its case as a matter of law through the production of the mortgage and the unpaid note (see, LBV Props. v Greenport Dev. Co., 188 AD2d 588). It was then incumbent upon the defendant to assert any defense which could properly raise a question of fact as to his default on the mortgage (see, LBV Props. v Greenport Dev. Co., supra, at 589). The defendant failed to raise any such issue of fact.

Further, the Supreme Court properly directed that the defendant pay the attorney’s fees of the plaintiff. Because the defendant was in default on the mortgage, according to the terms thereof the plaintiff was entitled to recover reasonable attorney’s fees in pursuing the foreclosure action (see, Carroll v Miller, 213 AD2d 694, 696). We discern no reason to disturb the amount of attorney’s fees awarded by the Supreme Court, and find that this amount bears a reasonable relation to the time and effort expended by the plaintiffs attorneys in the instant foreclosure action (see, Federal Land Bank v Ambrosano, 89 AD2d 730).

The defendant’s remaining contentions are without merit. Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.