PERL v. WEISZ

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

Sheldon PERL, Respondent, v. George WEISZ, et al., Appellants.

Decided: June 24, 2002

ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and STEPHEN G. CRANE, JJ. Raice Paykin Kreig, LLP, New York, N.Y. (David J. Wolkenstein of counsel), for appellants.

In an action to foreclose a mortgage, the defendants appeal (1) from a decision of the Supreme Court, Kings County (Pincus, J.), dated March 21, 2001, and (2), as limited by their brief, from so much of an order of the same court, dated July 30, 2001, as granted those branches of the plaintiff's motion which were for summary judgment and to refer the matter to a referee.

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

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

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

The plaintiff brought the instant action to foreclose a mortgage after the defendants failed to repay the principal balance due on a note when it matured.   When he initially moved for summary judgment, the plaintiff inadvertently failed to submit a copy of the mortgage along with his papers.   The court adjourned the motion for one month to allow him to submit corrected papers.   After the plaintiff did so, however, the court refused to consider the defendants' papers submitted in opposition to the motion.   The court granted the plaintiff's motion, and the defendants appeal.

Although we agree with the defendants that the Supreme Court erred in refusing to consider the papers which they submitted in opposition to the plaintiff's adjourned motion for summary judgment, we have reviewed those opposition papers and conclude that they fail to demonstrate the existence of a triable issue of fact as to the defenses of waiver or estoppel (see Yasuda Bank & Trust Co. v. Oree, 233 A.D.2d 391, 650 N.Y.S.2d 590;  Prudential Home Mtge. Co. v. Cermele, 226 A.D.2d 357, 640 N.Y.S.2d 254;  North Fork Bank v. Hamptons Mist Mgt. Corp., 225 A.D.2d 596, 597, 639 N.Y.S.2d 451;  Home Sav. Bank v. Schorr Bros. Dev. Corp., 213 A.D.2d 512, 624 N.Y.S.2d 53).

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