Podvey, Sachs, Meanor & Catenacci v. Chandra

211 A.D.2d 707, 622 N.Y.S.2d 80, 1995 N.Y. App. Div. LEXIS 490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1995
• Status: Published

Opinion

In an action to foreclose a mortgage on real property, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Rockland County (Meehan, J.), dated January 11, 1993, as granted the plaintiffs motion for summary judgment, and (2) so much of a resettled order of the same court, dated January 25, 1993, as granted the plaintiffs motion for summary judgment and appointed a Referee.

Ordered that the appeal from the order dated January 11, 1993, is dismissed, as that order was superseded by the resettled order dated January 25, 1993; and it is further,

Ordered that the resettled order is reversed insofar as appealed from, on the law, the order dated January 11, 1993, is modified by deleting the provision thereof which granted the plaintiff’s motion for summary judgment, and the plaintiff’s motion for summary judgment is denied; and it is further,

Ordered that the appellants are awarded one bill of costs.

The plaintiff law firm moved to foreclose a mortgage on the defendants’ home based on their failure to satisfy purportedly outstanding legal fees which were secured by the mortgage.

There are numerous triable issues of fact on this record, including questions of fact as to whether the mortgage itself was procured by duress. In addition to the issues surrounding the execution of the mortgage, there are questions of fact, inter alia, as to the number of hours of legal services actually performed, the fee charged per hour, and whether the fees charged were reasonable.

Under these circumstances, the Supreme Court erred in granting the plaintiff’s motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 551, 562). Miller, J. P., Joy, Krausman and Goldstein, JJ., concur.