FIRST TRUST NATIONAL ASSOCIATION v. Arcadian Equities, Inc., etc., Respondent.

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

FIRST TRUST NATIONAL ASSOCIATION, etc., Appellant, v. Lorenzo A. DeLUCA, et al., Defendants, Arcadian Equities, Inc., etc., Respondent.

Decided: June 25, 2001

LAWRENCE J. BRACKEN, P.J., CORNELIUS J. O'BRIEN, GLORIA GOLDSTEIN, and LEO F. McGINITY, JJ. Rothschild & Quaid, LLP, Garden City, N.Y. (Valerie Mirto Rothschild of counsel), for appellant. Baer Marks & Upham, LLP, New York, N.Y. (Stuart W. Berg of counsel), for respondent.

In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 30, 1999, as, upon reargument, in effect, denied its motion for summary judgment.

ORDERED that the order is affirmed, with costs.

 Although not raised in the answer of the respondent's predecessor-in-interest, the Supreme Court properly considered the affirmative defenses of forgery, Statute of Frauds, and lack of authority raised by the respondent in opposition to the appellant's motion for summary judgment (see, Rizzi v. Sussman, 9 A.D.2d 961, 195 N.Y.S.2d 672).

 In opposition to the appellant's prima facie showing of entitlement to summary judgment, the respondent raised triable issues of fact including, inter alia, the validity of a letter from the respondent's predecessor-in-interest indicating its agreement to subordinate its mortgage to that of the appellant (cf., Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   As there remain factual questions regarding the validity of the letter, the applicability of the doctrine of equitable subrogation may not be determined as a matter of law (see, Pawling Savings Bank v. Jeff Hunt Properties, 225 A.D.2d 678, 680, 639 N.Y.S.2d 462).

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