Perl v. Weisz

Appellate Division of the Supreme Court of New York

Perl v. Weisz

295 A.D.2d 588, 745 N.Y.S.2d 43, 2002 N.Y. App. Div. LEXIS 6758

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

DecidedJune 24, 2002

StatusPublished

This text of 295 A.D.2d 588 (Perl v. Weisz) 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

Perl v. Weisz, 295 A.D.2d 588, 745 N.Y.S.2d 43, 2002 N.Y. App. Div. LEXIS 6758 (N.Y. Ct. App. 2002).

Pincite

Opinion

—In an action to foreclose a mortgage, the defendants appeal (1) from a decision of the Supreme Court, Kings County (Pincus, J.), dated March 21, 2001, and (2), as limited by their brief, from so much of an order of the same court, dated July 30, 2001, as granted those branches of the plaintiff’s motion which were for summary judgment and to refer the matter to a referee.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff brought the instant action to foreclose a mortgage after the defendants failed to repay the principal balance due on a note when it matured. When he initially moved for summary judgment, the plaintiff inadvertently failed to submit a copy of the mortgage along with his papers. The court [589]*589adjourned the motion for one month to allow him to submit corrected papers. After the plaintiff did so, however, the court refused to consider the defendants’ papers submitted in opposition to the motion. The court granted the plaintiff’s motion, and the defendants appeal.

Although we agree with the defendants that the Supreme Court erred in refusing to consider the papers which they submitted in opposition to the plaintiff’s adjourned motion for summary judgment, we have reviewed those opposition papers and conclude that they fail to demonstrate the existence of a triable issue of fact as to the defenses of waiver or estoppel (see Yasuda Bank & Trust Co. v Oree, 233 AD2d 391; Prudential Home Mtge. Co. v Cermele, 226 AD2d 357; North Fork Bank v Hamptons Mist Mgt. Corp., 225 AD2d 596, 597; Home Sav. Bank v Schorr Bros. Dev. Corp., 213 AD2d 512). Florio, J.P., Friedmann, H. Miller and Crane, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to foreclose a mortgage, the defendants appeal (1) from a decision of the Supreme Court, Kings County (Pincus, J.), dated March 21, 2001, and (2), as limited by their brief, from so much of an order of the same court, dated July 30, 2001, as granted those branches of the plaintiff’s motion which were for summary judgment and to refer the matter to a referee.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff brought the instant action to foreclose a mortgage after the defendants failed to repay the principal balance due on a note when it matured. When he initially moved for summary judgment, the plaintiff inadvertently failed to submit a copy of the mortgage along with his papers. The court [589]*589adjourned the motion for one month to allow him to submit corrected papers. After the plaintiff did so, however, the court refused to consider the defendants’ papers submitted in opposition to the motion. The court granted the plaintiff’s motion, and the defendants appeal.

Although we agree with the defendants that the Supreme Court erred in refusing to consider the papers which they submitted in opposition to the plaintiff’s adjourned motion for summary judgment, we have reviewed those opposition papers and conclude that they fail to demonstrate the existence of a triable issue of fact as to the defenses of waiver or estoppel (see Yasuda Bank & Trust Co. v Oree, 233 AD2d 391; Prudential Home Mtge. Co. v Cermele, 226 AD2d 357; North Fork Bank v Hamptons Mist Mgt. Corp., 225 AD2d 596, 597; Home Sav. Bank v Schorr Bros. Dev. Corp., 213 AD2d 512). Florio, J.P., Friedmann, H. Miller and Crane, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

295 A.D.2d 588, 745 N.Y.S.2d 43, 2002 N.Y. App. Div. LEXIS 6758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perl-v-weisz-nyappdiv-2002.

Opinion

Related

Cite This Page — Counsel Stack