FEDERAL NATIONAL MORTGAGE ASSOCIATION v. James Woodbury, etc., et al., Defendants.

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

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Respondent, v. Shirley WOODBURY, Also Known as Shirley Dupree, Defendant-Appellant, James Woodbury, etc., et al., Defendants.

Decided: October 22, 1998

Before MILONAS, J.P., WILLIAMS, ANDRIAS and SAXE, JJ. Richard E. Hershenson, for Plaintiff-Respondent. Hugh W. Campbell, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered August 27, 1997, which, in an action to foreclose a mortgage, granted plaintiff's motion for partial summary judgment and denied defendant-appellant's cross motion for summary judgment or consolidation, unanimously modified, on the facts, to consolidate the remaining portion of the instant action (Bronx County Index No. 16997/94) with appellant's action to set aside the subject mortgage (Bronx County Index No. 16949), and otherwise affirmed, without costs.

 Even if, as appellant contends, her signature on the subject mortgage was forged, partial summary judgment was properly granted to plaintiff on the theory of equitable subrogation, based on its pay off of prior mortgages against appellant's property at the closing of the subject mortgage (Great Eastern Bank v. Chang, 227 A.D.2d 589, 643 N.Y.S.2d 203, lv. dismissed 88 N.Y.2d 1064, 651 N.Y.S.2d 407, 674 N.E.2d 337).   Nor was it error for the motion court to grant summary judgment on this unpleaded theory absent prejudice to appellant (see, Torrioni v. Unisul, Inc., 214 A.D.2d 314, 624 N.Y.S.2d 433).   As to the remaining portion of this action, there is, at best, a question of fact concerning the alleged forgery of the subject mortgage given the notarization of appellant's signature on the pertinent documents (see, Orix Credit Alliance v. Fan Sy Prods., 215 A.D.2d 113, 625 N.Y.S.2d 910).  However, we modify so as to consolidate the remaining portion of this action with defendant's action attacking the validity of the subject mortgage.

MEMORANDUM DECISION.