Inwood Park Developers, Inc. v. Erhal Holding Corp.

79 A.D.2d 648, 434 N.Y.S.2d 35, 1980 N.Y. App. Div. LEXIS 14015

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1980
• Status: Published

Opinion

In an action to foreclose a mortgage, defendant East Coast Wholesalers, Inc., appeals from so much of an order of the Supreme Court, Westchester County, entered April 25, 1980, as granted plaintiff’s motion to dismiss its affirmative defense of fraud. Order affirmed insofar as appealed from, without costs or disbursements. While fraud in the inducement of the senior mortgage may, in certain cases, be asserted by a junior lienor as an affirmative defense to a foreclosure action, fraud in inducing the junior lien, where the senior mortgage is not attacked, is no defense to an action to foreclose the latter. (See D & G Girl Coat Co. v Kafka, 218 App Div 607, affd 245 NY 646.) Mangano, J. P., Gibbons, Gulotta and O’Connor, JJ., concur.