MARCULESCU v. OVANEZ (2006)

In an action to foreclose a mortgage, the defendant Alexandru Ovanez appeals (1) from a decision of the Supreme Court, Queens County (Taylor, J.), dated September 16, 2004, and (2), as limited by his brief, from so much of an order of the same court entered December 13, 2004, as granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability, to strike his answer, and to refer the matter to a referee, inter alia, for a computation of the amount due the plaintiff.

 ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, those branches of the motion which were for summary judgment on the issue of liability, to strike the appellant's answer, and to refer the matter to a referee, inter alia, for a computation of the amount due the plaintiff are denied, and the appellant's answer is reinstated;  and it is further,

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

 The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting the relevant mortgage, the underlying note, and evidence of a default (see Household Fin. Realty Corp. of N.Y. v. Winn, 19 A.D.3d 545, 796 N.Y.S.2d 533;  Fleet Natl. Bank v. Olasov, 16 A.D.3d 374, 793 N.Y.S.2d 52;  Republic Natl. Bank of N.Y. v. O'Kane, 308 A.D.2d 482, 764 N.Y.S.2d 635).   In response, the defendant Alexandru Ovanez produced a release given to him by the plaintiff, which extinguished Ovanez's debt to the plaintiff “for the promissory notes.”   Because the release is ambiguous as to whether the matters from which the plaintiff released Ovanez included the note underlying the mortgage that is the subject of this action, the document raised a triable issue of fact, precluding summary judgment in favor of the plaintiff on the issue of liability (see Navillus Tile v. Turner Constr. Co., 2 A.D.3d 209, 210, 770 N.Y.S.2d 3;  Doldan v. Fenner, 309 A.D.2d 1274, 1275-1276, 765 N.Y.S.2d 401;  Loitta v. Real Seal Constr., 203 A.D.2d 786, 787-788, 610 N.Y.S.2d 406).