Scadura v. Robillard, 683 N.Y.S.2d 108

Scadura v. Robillard

683 N.Y.S.2d 108

N.Y. App. Div.

1998

Check Treatment

—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Jiudice, J.), dated December 9, 1997, which granted the motion of the defendants Lawrence C. Gallagher and Nancy V. Gallagher to dismiss the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1) and (5), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see, Leon v Martinez, 84 NY2d 83, 87-88; Kalivia Food Corp. v Hunts Point Coop. Mkt., 244 AD2d 460; Fernandez v Cigna Prop. & Cas. Ins. Co., 188 AD2d 700). The respondents failed to carry that burden. While the respondents’ documentary evidence demonstrated that, based upon their unilateral amortization calculations, the respondents tendered an amount that they believed was sufficient to satisfy their indebtedness to the plaintiff, the plaintiff asserted a facially-valid claim for an additional $39,461.57. Inasmuch as the documentary evidence did not conclusively prove that the outstanding debt had been paid in full and the plaintiffs claim was unfounded, the respondents were not entitled to the dismissal of the foreclosure action. Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.