Kelly v. Lamontagne

71 A.D.2d 1016, 420 N.Y.S.2d 411, 1979 N.Y. App. Div. LEXIS 13362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1979
• Status: Published

Opinion

—In an action by an assignee to foreclose a purchase-money mortgage on realty, plaintiff appeals from an order of the Supreme Court, Dutchess County, dated May 31, 1978, which granted the defendant mortgagor’s motion for summary judgment dismissing the complaint, canceled the notice of pendency filed by plaintiff, and denied plaintiff’s cross motion for summary judgment. Order modified by deleting from the first decretal paragraph thereof the provision which granted the motion for summary judgment and substituting therefor a provision denying the motion. As so modified, order affirmed, without costs or disbursements. Special Term erred in granting summary judgment to the defendant-respondent. The papers submitted by the plaintiff assignee and respondent raise a triable issue as to whether plaintiff took the assignment of the bond and mortgage subject to all defenses and counterclaims which the respondent might have against the mortgagee-assignor under their unrecorded collateral agreement (see Granick v Mobacb, 13 AD2d 534, mot for lv to app den 13 AD2d 688). The factual issues stemming from the collateral agreement which are raised in opposition to plaintiff’s cross motion for summary judgment are, under the circumstances, identical to those presented in respondent’s application for similar relief, and controverted by plaintiff in papers submitted by her. Hopkins, J. P., Titone, Mangano and Gulotta, JJ., concur.