GRAY WOLF CORP PLAINTIFF APPELLANT v. APPEAL NO

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

GRAY WOLF CORP., PLAINTIFF–APPELLANT, v. GLEASON ESTATES ASSOCIATES, LP, DEFENDANT–RESPONDENT, ET AL., DEFENDANT. (APPEAL NO. 1.)

CA 10–01731

Decided: October 07, 2011

PRESENT:  SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ. WOODS OVIATT GILMAN LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR PLAINTIFF–APPELLANT. LECLAIR RYAN, ROCHESTER (GREGORY J. MASCITTI OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying defendant's cross motion and reinstating the complaint and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this foreclosure action and thereafter moved for summary judgment on the complaint, and defendant cross-moved for summary judgment dismissing it.   We note at the outset that Supreme Court properly concluded that defendant was under no obligation to provide plaintiff with certain annual financial statements in accordance with the terms of the various documents executed both between the parties and between the parties and the United States Department of Housing and Urban Development.   We further conclude that the court properly denied plaintiff's motion for summary judgment on the foreclosure complaint because, on the record before us, there is an issue of fact whether defendant was in default (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).   For that same reason, however, we conclude that the court erred in granting defendant's cross motion for summary judgment dismissing the complaint, and we therefore modify the order accordingly.

Patricia L. Morgan

Clerk of the Court