Appellate Division of the Supreme Court of New York, 1996

Dinardo v. Patcam Service Station, Inc.

Appellate Division of the Supreme Court of New York · Decided June 17, 1996

228 A.D.2d 543; 644 N.Y.2d 779; 644 N.Y.S.2d 779; 1996 N.Y. App. Div. LEXIS 7167

Cases that cite this one

12 later published cases cite this decision.

First Union National Bank v. Weston (Appellate Division of the Supreme Court of New York 1999)
State of New York Mortgage Agency v. Lang (Appellate Division of the Supreme Court of New York 1998)
Federal Home Loan Mortgage Corp. v. Karastathis (Appellate Division of the Supreme Court of New York 1997)
Tarantino v. Queens Ballpark Co., LLC (Appellate Division of the Supreme Court of New York 2014)
Wells Fargo Bank, N.A. v. Cohen (Appellate Division of the Supreme Court of New York 2011)
Wells Fargo Bank Minnesota v. Perez (Appellate Division of the Supreme Court of New York 2007)
Republic National Bank v. O'Kane (Appellate Division of the Supreme Court of New York 2003)
Republic National Bank v. Zito (Appellate Division of the Supreme Court of New York 2001)
Flood v. Akmal (Appellate Division of the Supreme Court of New York 2000)
Tashbook v. Kaplan (Appellate Division of the Supreme Court of New York 1998)
Bank of Boston v. Mauro (Appellate Division of the Supreme Court of New York 1997)
Lavi v. Hamedani (Appellate Division of the Supreme Court of New York 1996)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

"It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default * * * When a plaintiff does so, it is incumbent upon the defendant to assert any defenses which could properly raise a viable question of fact as to [the] default” (Village Bank v Wild Oaks Holding, 196 AD2d 812). We agree with the Supreme Court that the appellants’ allegations concerning, inter alia, lack of consideration, were insufficient to create a triable issue of fact with respect to the foreclosure of the mortgage.

Moreover, the court properly denied the appellants’ application for leave to amend their answer since the proposed amendment lacks merit. While permission to serve amended pleadings should be freely granted (see, CPLR 3025 [b]), a pleading *544which is totally devoid of merit should not be allowed (see, Kaplansky v Kaplansky, 212 AD2d 667; Krupp v Aetna Life & Cas. Co., 104 AD2d 857). Sullivan, J. P., Joy, Krausman and McGinity, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.