State Street Bank & Trust Co. v. Boayke

249 A.D.2d 535, 671 N.Y.S.2d 359, 1998 N.Y. App. Div. LEXIS 4607

Opinion

—In an action to foreclose a mortgage, the defendant Esther Williams Boayke appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered May 2, 1997, as denied that branch of her motion which was for leave to reargue, and upon granting that branch of her motion which was for leave to renew, adhered to its original order entered October 2,1996, which granted the plaintiffs motion for summary judgment.

Ordered that the appeal from that portion of the order which denied the appellant’s motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order is reversed insofar as reviewed, the order entered October 2, 1996, is vacated, and the plaintiffs motion for summary judgment is denied; and it is further,

Ordered that the appellant is awarded one bill of costs.

The plaintiff, the assignee of a note and mortgage executed by the appellant, commenced this action to foreclose the mortgage when the appellant defaulted in making payment. An assignee of a mortgage takes subject to all defenses and counterclaims that can be asserted against the assignor (see, Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586; Caprara v Charels Ct. Assocs., 216 AD2d 722; Granick v Mobach, 13 AD2d 534). Upon our review of the record, we find that triable issues of fact exist concerning the appellant’s defenses of fraud and usury which preclude summary judgment. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.