Dime Savings Bank of New York v. Weinstein

259 A.D.2d 400, 687 N.Y.S.2d 105, 1999 N.Y. App. Div. LEXIS 2801

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered January 6, 1998, which, inter alia, granted defendant Burton and Carolyn Weinsteins’ motion for summary judgment on their cross claim against defendant-appellant Callahans, unanimously affirmed, without costs.

The issues raised in connection with the Weinsteins’ cross claim to recover amounts paid by them in satisfaction of a deficiency judgment are distinct from those raised by plaintiff bank in its action to foreclose the mortgage affecting the premises conveyed by the Weinsteins to the Callahans, and were not addressed, much less disposed of, in the earlier order granting plaintiff bank’s motion for summary judgment. Thus, the issues pertinent to the cross claim were properly addressed by the motion court. Thereupon, such issues were correctly decided. The terms of the assumption clause in the Condominium Deed, the execution of which was not contested, establish the Callahans’ liability pursuant to General Obligations Law § 5-705, as a matter of law (see, 1 Bergman, New York Mortgage Foreclosures § 12.04 [2]; Schley v Fryer, 100 NY 71). Concur — Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.