Farlekas v. Di Napoli

Order, Supreme Court, Bronx County, entered June 29, 1970, unanimously reversed, on the law, and plaintiff’s motion to strike the answer of defendant J. MacNabney Realty Corp.. granted with costs, and that the appeal from order of said court, entered on August 31, 1971, unanimously dismissed as academic. Appellant shall recover of respondent one bill of $30 costs and disbursements of this appeal. In this action to foreclose a second mortgage, the documentary evidence and other proof submitted by plaintiff factually establish a prima facie case. The denials of defendant, a third mortgagee, are unsupported and appear to be sham. Defendant's’ opposition to plaintiff’s motion is grounded specifically on the claim that the plaintiff’s note and mortgage are usurious. But the defense of usury is not pleaded and, in any event, it lacks merit. The note and mortgage recite and it satisfactorily appears that, in addition to securing a sum currently advanced, the mortgage was executed and delivered as further security for a bona fide existing indebtedness represented by another note and mortgage. Concur— Capozzoli, J. P., McGivern, Murphy, Steuer and Eager, JJ.