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GMAC, LLC v. Ray

Supreme Court of New York, Second Department

October 30, 2013

GMAC, LLC, respondent,
v.
John Ray, appellant, et al., defendants. Index No. 28744/03

John Ray & Associates, Miller Place, N.Y. (Vesselin Mitev and John Ray, pro se, of counsel), for appellant.

Certilman Balin Adler & Hyman, LLP, Hauppauge, N.Y. (Susan L. McWalters and Otterbourg, Steindler, Houston & Rosen, P.C. [Daniel Wallen and Stuart J. Wells], of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant John Ray appeals from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated January 31, 2012, which denied his motion, made jointly with the defendant Jacqueline Ray, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly determined that there are triable issues of fact requiring the denial of the appellant's motion, made jointly with the defendant Jacqueline Ray, for summary judgment dismissing the complaint insofar as asserted against them (see CPLR 3212; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). There are triable issues of fact, inter alia, as to whether the plaintiff should be estopped from foreclosing on the subject mortgage because of allegedly misleading statements made to the appellant by the plaintiff's predecessor-in-interest upon which the appellant justifiably relied (see Carver Fed. Sav. & Loan Assn. of N.Y. v Glanzer, 186 A.D.2d 706, 707-708; see also Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184).

To the extent that the appellant's brief purports to also be submitted on behalf of the defendant Jacqueline Ray, we note that Jacqueline Ray is not an appellant, as no notice of appeal was filed on her behalf.

RIVERA, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.


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