GUTMAN v. Joseph M. Karpf, et al., Additional Defendants on Counterclaim. (2002)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 18, 2001, which denied defendants building owners' motion for partial summary judgment with respect to so much of the action as involves the validity of certain mortgages they gave to plaintiff building manager, unanimously affirmed, with costs.

We reject defendants' argument that plaintiff's deposition establishes that the mortgages were gifts and lacked adequate consideration.   Plaintiff testified that she did not know and never asked defendants how they determined the amounts of the mortgages they “voluntarily” gave her, and that she understood that the mortgages were not to be recorded.   However, she also testified that she sometimes paid building expenses with her own money, and indicated that defendants, in recognition of their problematic financial circumstances, gave her the mortgages to secure payment of such advances both past and future as well as her services.   Such testimony raises an issue of fact as to whether consideration adequate to support a mortgage passed from plaintiff to defendants (see, 77 N.Y. Jur 2d, Mortgages and Deeds of Trust, §§ 48, 49, 68). The fact that the mortgages were not to be recorded does not affect their validity as between the parties (see, id., § 113, at 500).