Bragagnolo v. EMC Mortgage Corp.

234 A.D.2d 328, 651 N.Y.S.2d 870, 1996 N.Y. App. Div. LEXIS 12887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1996
• Status: Published

Opinion

—In an action to rescind a note and mortgage on the ground, inter alia, of fraud, the plaintiff appeals, (1) as limited by her brief, from so much of a judgment of the Supreme Court, Suffolk County (Cannavo, J.), dated December 14,1994, as, upon granting the defendant’s motion for summary judgment dismissing the complaint, dismissed the action, and (2) from an order of the same court, dated January 13, 1995, which denied her motion, in effect, for reargument.

Ordered that the appeal from the order dated January 13, 1995, is dismissed as no appeal lies from an order denying re-argument; and it is further,

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the defendant is awarded one bill of costs.

The plaintiff’s contention that she tendered payment for the note and that the defendant surrendered the mortgage instrument is raised for the first time on appeal and is therefore not properly before this Court (see, Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757). Mangano, P. J., O’Brien, Pizzuto and Goldstein, JJ., concur.