Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered April 30, 2010 in a foreclosure action.
Gray Wolf Corp. v Gleason Estates Assoc., Lp
Decided on October 7, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.
The order denied the motion of plaintiff for summary judgment and granted the cross motion of defendant for summary judgment.
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.
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 NY2d 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 ...