First Trust National Ass'n v. DeLuca

Appellate Division of the Supreme Court of New York

First Trust National Ass'n v. DeLuca

284 A.D.2d 494, 728 N.Y.S.2d 51, 2001 N.Y. App. Div. LEXIS 6734

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 25, 2001

StatusPublished

Cited by1 cases

This text of 284 A.D.2d 494 (First Trust National Ass'n v. DeLuca) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First Trust National Ass'n v. DeLuca, 284 A.D.2d 494, 728 N.Y.S.2d 51, 2001 N.Y. App. Div. LEXIS 6734 (N.Y. Ct. App. 2001).

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Opinion

—In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 30, 1999, as, upon reargument, in effect, denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

Although not raised in the answer of the respondent’s precedessor-in-interest, the Supreme Court properly considered the affirmative defenses of forgery, Statute of Frauds, and lack of authority raised by the respondent in opposition to the ap[495]*495pellant’s motion for summary judgment (see, Rizzi v Sussman, 9 AD2d 961).

In opposition to the appellant’s prima facie showing of entitlement to summary judgment, the respondent raised triable issues of fact including, inter alia, the validity of a letter from the respondent’s predecessor-in-interest indicating its agreement to subordinate its mortgage to that of the appellant (cf., Zuckerman v City of New York, 49 NY2d 557, 562). As there remain factual questions regarding the validity of the letter, the applicability of the doctrine of equitable subrogation may not be determined as a matter of law (see, Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 680). Bracken, P. J., O’Brien, Goldstein and McGinity, JJ., concur.

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—In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 30, 1999, as, upon reargument, in effect, denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

Although not raised in the answer of the respondent’s precedessor-in-interest, the Supreme Court properly considered the affirmative defenses of forgery, Statute of Frauds, and lack of authority raised by the respondent in opposition to the ap[495]*495pellant’s motion for summary judgment (see, Rizzi v Sussman, 9 AD2d 961).

In opposition to the appellant’s prima facie showing of entitlement to summary judgment, the respondent raised triable issues of fact including, inter alia, the validity of a letter from the respondent’s predecessor-in-interest indicating its agreement to subordinate its mortgage to that of the appellant (cf., Zuckerman v City of New York, 49 NY2d 557, 562). As there remain factual questions regarding the validity of the letter, the applicability of the doctrine of equitable subrogation may not be determined as a matter of law (see, Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 680). Bracken, P. J., O’Brien, Goldstein and McGinity, JJ., concur.

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Bluebook (online)

284 A.D.2d 494, 728 N.Y.S.2d 51, 2001 N.Y. App. Div. LEXIS 6734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-trust-national-assn-v-deluca-nyappdiv-2001.

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