GATES v. David Martin, et al., defendants third-party plaintiffs-respondents, et al.;  third-party defendants. (2006)

In an action to foreclose three mortgages, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 4, 2005, as denied that branch of her cross motion which was for summary judgment and, in effect, denied that branch of her cross motion which was for leave to reargue her motion for the appointment of a temporary receiver for the subject properties, which had been denied in an order of the same court (Lifson, J.), dated January 26, 2004, and granted the motion of the defendants third-party plaintiffs David Martin, Jodi Martin, Vincent Faraci, s/h/a John Doe, and Roseann Faraci, s/h/a Jane Doe, for a preliminary injunction enjoining her from proceeding with the action pending the determination of actions entitled Martin v. Easy Living Homes, Inc., and Faraci v. Easy Living Homes, Inc., pending in the Supreme Court, Suffolk County, under Index Nos. 7344/01 and 8225/04, respectively, without further order of the Supreme Court.

ORDERED that the appeal from so much of the order as, in effect, denied that branch of the cross motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

 In support of that branch of her cross motion which was for summary judgment, the plaintiff established her prima facie entitlement to judgment as a matter of law through the production of the subject mortgages and unpaid notes (see Republic Natl. Bank of N.Y. v. O'Kane, 308 A.D.2d 482, 764 N.Y.S.2d 635;  Village Bank v. Wild Oaks Holding, 196 A.D.2d 812, 601 N.Y.S.2d 940;  Metropolitan Distrib. Servs. v. DiLascio, 176 A.D.2d 312, 574 N.Y.S.2d 755).   However, the Supreme Court properly declined to grant summary judgment at this juncture, as the respondents are entitled to obtain necessary discovery concerning the alleged fraud perpetrated by the plaintiff and the defendants Easy Living Homes, Inc., and Elliot A. Baker (see CPLR 3212[f];  Aubrey Equities v. SMZH 73rd Assoc., 212 A.D.2d 397, 398, 622 N.Y.S.2d 276).   Summary judgment should not be granted where, as here, there are likely to be defenses that depend upon knowledge in the possession of the party moving for summary judgment which may be disclosed by discovery (see Terranova v. Emil, 20 N.Y.2d 493, 497, 285 N.Y.S.2d 51, 231 N.E.2d 753;  Aubrey Equities v. SMZH 73rd Assoc., supra ).

 Further, since the respondents demonstrated a probability of success on the merits, a danger of irreparable injury in the absence of the preliminary injunction, and a balance of the equities in their favor, the Supreme Court providently exercised its discretion in granting the preliminary injunction (see Spirt v. Spirt, 209 A.D.2d 688, 689, 619 N.Y.S.2d 316;  Moczan v. Moczan, 135 A.D.2d 692, 522 N.Y.S.2d 591).

 Finally, contrary to the plaintiff's contention, that branch of the plaintiff's cross motion which was for the appointment of a temporary receiver was not based upon new facts which were unavailable at the time of her prior motion.   Therefore, that branch of her cross motion was one for leave to reargue, the denial of which is not appealable (see Scoma v. Doe, 2 A.D.3d 432, 433, 767 N.Y.S.2d 840;  Lin v. City of New York, 305 A.D.2d 553, 554, 759 N.Y.S.2d 394).