Gutterman v. Klahr

65 A.D.2d 600, 409 N.Y.S.2d 423, 1978 N.Y. App. Div. LEXIS 13276

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1978
• Status: Published

Opinion

In an action by an assignee to foreclose a purchase-money mortgage, defendant Gloria B. Klahr appeals from an order of the Supreme Court, Kings County, dated December 15, 1977, which granted plaintiffs motion for summary judgment and the appointment of a Referee to compute and denied her cross motion, inter alia, for leave to amend her answer so as to set forth, as an affirmative defense, an alleged violation of section 488 of the Judiciary Law (champerty). Order modified by deleting therefrom the provisions which granted plaintiffs motion and denied appellant’s motion and substituting therefor provisions denying plaintiffs motion and granting appellant’s motion only insofar as it seeks leave to amend the answer. As so modified, order affirmed, with $50 costs and disbursements. Appellant’s time to serve an amended answer is extended until 20 days after entry of the order to be made hereon. In our opinion, the motions raise questions of fact which must be tried (see Sprung v Jaffe, 3 NY2d 539; cf. Fairchild Hiller Corp. v McDonnell Douglas Corp., 28 NY2d 325). At bar, plaintiffs counsel’s assertions as to his motives cannot be credited as a matter of law because there is some evidence tending to cast those motives in doubt. Appellant’s motion insofar as it seeks summary judgment, may not be granted because plaintiff has presented evidence which, if uncontradicted, would require dismissal of the champerty defense. Appellant has not, as a matter of law, contradicted those assertions by documentary evidence or otherwise. Martuscello, J. P., Latham, Damiani and Titone, JJ., concur.