Majority
The Supreme Court erred in granting, on condition, those branches of the plaintiffs motion which were for summary judgment against the appellants Schneuer Z. Schapiro and Chana Shapiro, the owners of the subject condominium unit, and Wells Fargo Bank (hereinafter Wells Fargo), which had issued a mortgage on the subject condominium unit and for the appointment of a referee to compute.
In opposition to the plaintiffs prima facie showing of entitlement to summary judgment, and for the appointment of a referee to compute, the appellants raised a triable issue of fact as to whether the 1997 mortgages had been orally modified, whether there had been part performance of the alleged oral
In light of our determination, a joint trial of the instant action with the two related actions would be inappropriate, as it would result in prejudice to a substantial right of the appellants (see Skelly v Sachem Cent. School Dist., 309 AD2d 917 , 917-918 [2003]).
The parties’ remaining contentions either have been rendered academic in light of our determination or are without merit. Spolzino, J.P., Dillon, Carni and Leventhal, JJ., concur.
Cases cited
- Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Group plc 93 NY2d 229 at 235-236 p. 969
- Anostario v. Vicinanzo 59 NY2d 662 at 664 p. 969
- Rose v. Spa Realty Associates 42 NY2d 338 at 343-344 p. 969
- Luft v. Luft 52 AD3d 479 at 480-481 p. 969
- Sarcona v. DeGiaimo 226 AD2d 1143 p. 969
- Skelly v. Sachem Central School District 309 AD2d 917 at 917-918 p. 969