Umansky v. Seaboard Industries, Inc.

45 A.D.2d 1051, 358 N.Y.S.2d 22, 1974 N.Y. App. Div. LEXIS 4323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 1974
• Status: Published

Opinion

In an action by assignees to foreclose a purchase-money mortgage on real property, in which defendant-mortgagor interposed a defense based upon the assignors’ alleged breach of a collateral agreement regarding the filing of subdivision maps and a counterclaim based upon the assignees’ alleged tortious interference with a contract of sale of the subject property, plaintiff-assignees appeal from so much of an order of the Supreme Court, Dutchess County, dated December 14, 1973, as, denied their motion to strike defendant’s answer and for summary judgment upon the complaint. Defendant-mortgagor cross-appeals from so much of said order as severed its counterclaim. Order reversed, on the law, with $20 costs and disbursements payable to plaintiffs, and plaintiffs’ motion granted only insofar as it is for summary judgment, with entry of the interlocutory judgment of foreclosure and sale to be stayed pending trial and determination of the issues raised in defendant’s “affirmative defense” and counterclaim, which issues should be tried promptly. In our view, there exist no triable issues of fact with respect to plaintiffs’ right to a judgment of foreclosure and sale. Defendant’s “affirmative defense" and counterclaim in no way bear upon the validity of the bond and mortgage. However, since defendant’s claims are properly interposed and any damages established by it may be offset as against the amount due plaintiffs, we direct that these claims be speedily tried and that the entry of an interlocutory judgment of foreclosure and sale be stayed pending the trial and determination thereof. Hopkins, Acting P. J., Martuscello, Latham, Benjamin and Munder, JJ., concur.