| Sudit v Schapiro |
| 2008 NY Slip Op 10604 [57 AD3d 968] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Vladimir Sudit, Doing Business as VS International,Respondent, v Schneuer Z. Schapiro et al., Appellants, et al.,Defendants. |
—[*1] Solomon Rosengarten, Brooklyn, N.Y., for respondent.
In an action, inter alia, to foreclose a mortgage, the defendants Schneuer Z. Schapiro, ChanaShapiro, and Wells Fargo Bank appeal, as limited by their brief, from so much of an amendedorder of the Supreme Court, Kings County (Hinds-Radix, J.), dated April 4, 2007, as granted, oncondition, those branches of the plaintiff's motion which were for summary judgment againstthem and for the appointment of a referee to compute, and granted that branch of the plaintiff'smotion which was to consolidate the action with two related actions entitled Ezagui v Sudit,pending under Kings County index No. 17038/01, and Sudit v Lefferts Homes, Inc.,pending under Kings County index No. 22592/01, to the extent of directing that the actionsshall be tried jointly.
Ordered that the amended order is reversed insofar as appealed from, on the law, with coststo the appellants, and those branches of the plaintiff's motion which were for summary judgmentagainst the appellants and for the appointment of a referee to compute, and to consolidate theaction with two related actions entitled Ezagui v Sudit, pending under Kings Countyindex No. 17038/01, and Sudit v Lefferts Homes, Inc., pending under Kings Countyindex No. 22592/01, are denied.
The Supreme Court erred in granting, on condition, those branches of the plaintiff's motionwhich [*2]were for summary judgment against the appellantsSchneuer Z. Schapiro and Chana Shapiro, the owners of the subject condominium unit, andWells Fargo Bank (hereinafter Wells Fargo), which had issued a mortgage on the subjectcondominium unit and for the appointment of a referee to compute.
In opposition to the plaintiff's prima facie showing of entitlement to summary judgment, andfor the appointment of a referee to compute, the appellants raised a triable issue of fact as towhether the 1997 mortgages had been orally modified, whether there had been part performanceof the alleged oral agreement, and whether such part performance was unequivocally referable tothe alleged oral agreement (see Messner Vetere Berger McNamee Schmetterer Euro RSCG vAegis Group, 93 NY2d 229, 235-236 [1999]; Anostario v Vicinanzo, 59 NY2d 662,664 [1983]; Rose v Spa Realty Assoc., 42 NY2d 338, 343-344 [1977]; Luft v Luft,52 AD3d 479, 480-481 [2008]; Travis v Fallani & Cohn, 292 AD2d 242, 244 [2002];Sarcona v DeGiaimo, 226 AD2d 1143 [1996]; General Obligations Law §§5-703, 15-301 [1], [2]).
In light of our determination, a joint trial of the instant action with the two related actionswould 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 ourdetermination or are without merit. Spolzino, J.P., Dillon, Carni and Leventhal, JJ., concur.