Opinion
March 11, 1996
Appeal from the Supreme Court, Suffolk County (Cohalan, J.).
Ordered that the appeal from the order dated June 28, 1994, is dismissed, as that order was superseded by the resettled order dated July 21, 1994; and it is further,
Ordered that the resettled order dated July 21, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In its motion, inter alia, for summary judgment, the plaintiff established its case as a matter of law through the production of the mortgage and the unpaid note. The appellants were then required to assert any defenses which would raise a question of fact about their default on the mortgage (see, LBV Props. v Greenport Dev. Co., 188 A.D.2d 588; Metropolitan Distrib. Servs. v DiLascio, 176 A.D.2d 312), such as "`waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter's part'" (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183, quoting Ferlazzo v Riley, 278 N.Y. 289, 292). In the present case, the appellants' conclusory and unsubstantiated assertions are not supported by competent evidence and are insufficient to defeat the plaintiff's motion (see, Zuckerman v City of New York, 49 N.Y.2d 557; LBV Props. v Greenport Dev. Co., supra; see also, North Fork Bank v Hamptons Mist Mgt. Corp., 225 A.D.2d 595 [decided herewith]; North Fork Bank v Rosen, 225 A.D.2d 598 [decided herewith]).
Moreover, while we agree that it was improper for the Supreme Court to hold that the April 24, 1991, release executed by the defendant Leonard Rosen in favor of the plaintiff served as a defense to all of the appellants' counterclaims (see, A.F.L. Falck, S.p.A. v Karay Co., 639 F. Supp. 314, 320), the counterclaims were properly dismissed as the appellants failed to raise any triable issues of fact with respect to the counterclaims (cf., Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, supra; Alumax Aluminum Corp. v Norstar Bank, 168 A.D.2d 163).
We have examined the appellants' remaining contentions and find them to be without merit. Sullivan, J.P., Santucci, Friedmann and Krausman, JJ., concur.