CONSUMER SOLUTIONS REO LLC v. GIGLIO (2010)

 Plaintiff commenced this action to foreclose on a mortgage and contends on appeal that Supreme Court erred in denying its motion for summary judgment on the complaint.   We note at the outset that the order on appeal and the letter from the court that accompanied it specifically direct plaintiff's attorney to file the order.   Plaintiff failed to comply with that directive, however, and waited six months before it filed the notice of appeal.   The notice of appeal was filed prior to the entry of the order, thus rendering the notice of appeal premature (see Matter of Danial R.B. v. Ledyard M., 35 A.D.3d 1232, 827 N.Y.S.2d 799;  Spano v. County of Onondaga, 170 A.D.2d 974, 565 N.Y.S.2d 665, lv. denied 77 N.Y.2d 809, 571 N.Y.S.2d 912, 575 N.E.2d 398, lv. dismissed 77 N.Y.2d 989, 571 N.Y.S.2d 915, 575 N.E.2d 401).   Nevertheless, we address the merits of the appeal in the exercise of our discretion and in the interest of judicial economy (see CPLR 5520[c];   Danial R.B., 35 A.D.3d at 1232, 827 N.Y.S.2d 799), and we affirm for reasons stated in the decision at Supreme Court.   We add only that, “[w]hen a plaintiff moves for summary judgment, it is proper for the court to look beyond the defendant[s'] answer and deny summary judgment if facts are alleged in opposition to the motion which, if true, constitute a meritorious defense” (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 182, 451 N.Y.S.2d 663, 436 N.E.2d 1265, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247).  “Consistent with the rule ․ that a defense established by the papers is sufficient though unpleaded to warrant denial of a motion for summary judgment” (id. at 183, 451 N.Y.S.2d 663, 436 N.E.2d 1265;  see Preferred Capital, Inc. v. PBK, Inc., 309 A.D.2d 1168, 1168–1169, 765 N.Y.S.2d 405), we agree with the court that defendants-respondents raised triable issues of fact with respect to whether plaintiff accepted payments on the mortgage after the date of the default alleged in the complaint (see generally Citicorp Mtge. v. Chen, 237 A.D.2d 968, 656 N.Y.S.2d 985), and with respect to the defenses of waiver and estoppel (see generally Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 664 N.Y.S.2d 345, lv. dismissed 91 N.Y.2d 1003, 676 N.Y.S.2d 129, 698 N.E.2d 958).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: