Cie Sharp, Huntington Station, N.Y., appellant pro se.
Lynch and Associates, New York, N.Y. (H. Michael Lynch of counsel), for respondent.
Opinion
In an action, inter alia, to foreclose a mortgage, the defendant Cie Sharp appeals from an order of the Supreme Court, Kings County (Pfau, J.), dated July 3, 2013, which, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on its cause of action to foreclose the mortgage.
ORDERED that the order is affirmed, with costs.
The plaintiff established its prima facie entitlement to judgment as a matter of law on its cause of action to foreclose the mortgage by submitting the mortgage, the underlying unpaid note, and evidence of default (see Emigrant Funding Corp. v. Agard, 121 A.D.3d 935, 936, 995 N.Y.S.2d 154; Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 946 N.Y.S.2d 611). Accordingly, the burden then shifted to the defendant Cie Sharp (hereinafter the appellant) to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff (see Independence Bank v. Valentine, 113 A.D.3d 62, 64–65, 976 N.Y.S.2d 504; Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345).
Even when viewed in the light most favorable to the appellant (see Emigrant Funding Corp. v. Agard, 121 A.D.3d at 936, 995 N.Y.S.2d 154), his conclusory assertions in his affidavit submitted in opposition to the motion were not supported by competent evidence (see North Fork Bank v. Hamptons Mist Mgt. Corp., 225 A.D.2d 596, 597, 639 N.Y.S.2d 451; Home Sav. Bank v. Schorr Bros. Dev. Corp., 213 A.D.2d 512, 513, 624 N.Y.S.2d 53), and therefore failed to raise a triable issue of fact concerning his fraud defense (see Solomon v. Burden, 104 A.D.3d 839, 840, 961 N.Y.S.2d 535), or whether the plaintiff's conduct was unconscionable (see Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 794, 946 N.Y.S.2d 611; New York Community Bank v. Parade Place, LLC, 96 A.D.3d 542, 543, 947 N.Y.S.2d 426; CFSC Capital Corp. XXVII v. Bachman Mech. Sheet Metal Co., 247 A.D.2d 502, 505, 669 N.Y.S.2d 329).
The parties' remaining contentions are either without merit or not properly before this Court.
DILLON, J.P., DICKERSON, HINDS–RADIX and MALTESE, JJ., concur.