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Supreme Court, Appellate Division, First Department, New York.

GATEWAY DETROIT ASSOCIATES, L.L.C., Plaintiff-Appellant, v. The WITKOFF GROUP, L.L.C., et al., Defendants-Respondents.

Decided: August 08, 2002

ANDRIAS, J.P., SULLIVAN, WALLACH, RUBIN and GONZALEZ, JJ. Richard D. Emery & Ilann M. Maazel, for Plaintiff-Appellant. Jeffrey Schreiber for Defendants-Respondents.

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about December 14, 2001, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendants' motion denied and, pursuant to CPLR 3212(b), summary judgment granted to plaintiff on its first cause of action for specific performance and the matter remanded for further proceedings.   Order, same court and Justice, entered on or about December 12, 2001, which denied plaintiff's motion to strike defendants' reply papers on their summary judgment motion, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered on or about December 12, 2001, which denied plaintiff's motion for summary judgment, unanimously dismissed, without costs, as academic in light of the foregoing.

 Contrary to the IAS court's finding that plaintiff seller had an affirmative obligation to have the necessary mortgage assumption papers or the presence of the mortgagee at the closing, the defendant buyer's own closing agenda, prepared and transmitted to plaintiff's attorney on September 16, 1998 in anticipation of a prior mutually rescheduled closing date of September 18, 1998, specified that the consent of the mortgagee to the assumption of the loan by the buyer and the related loan documents were the responsibility of the attorneys for National Bank as Trustee for the mortgagee, GMACCM, and that such consent had been executed and delivered and the related documents prepared.   Thus, defendant's claim that plaintiff never made a proper tender because of its failure to bring such documents to the November 5, 1998 closing, which claim was not raised until the instant motion for summary judgment, has no support in the record.   Accordingly, defendant's motion for summary judgment should have been denied and, absent any other viable defense, summary judgment granted to the non-moving plaintiff on a search of the record pursuant to CPLR 3212(b).  The motion court's denial of plaintiff's motion to strike defendant's reply papers was a proper exercise of its discretion.

Motion to strike pages 262-297 of the record on appeal granted to the extent of striking such pages, with the exception of judicial decisions at pages 279-280 and 295-298, and any such reference to the stricken material in plaintiff-appellant's brief and reply brief.