Bank of Boston v. Mauro

—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 26, 1996, which denied its motion for summary judgment and for dismissal of the affirmative defenses asserted by the respondents Reynold Mauro and Janet Mauro. Ordered that the order is reversed, on the law, with costs, the motion for summary judgment is granted, and the respondents’ affirmative defenses are dismissed. “It is settled that in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a [253] 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 his default” (Village Bank v Wild Oaks Holding, 196 AD2d 812; see also, DiNardo v Patcam Serv. Sta., 228 AD2d 543). The plaintiff met its burden by submitting evidence of the execution of the note and mortgage and the respondents’ failure to make payment in accordance with its terms (see, FGH Realty Credit Corp. v VRD Realty Corp., 231 AD2d 489). The respondents’ submission of payment coupons which were dated beyond the maturity date of the loan does not raise an issue of fact regarding whether the parties mutually agreed to extend the term of the loan, since these coupons do not satisfy the Statute of Frauds (see, General Obligations Law § 5-701 [a] [1]; § 5-1103). Modification of the mortgage cannot be inferred from the mere tender and acceptance of additional payments (see, Basciano v Toyet Realty Corp., 167 AD2d 203). No triable issue of fact is presented by any of the other defenses interposed in the respondents’ answer. Bracken, J. P., Joy and Altman, JJ., concur.