| James v Arango |
| 2010 NY Slip Op 03283 [72 AD3d 899] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Effingham James, Appellant-Respondent, v Odra N.Arango et al., Defendants, and FFFC, From Now on First Franklin Financial Group,Respondent-Appellant. |
—[*1] Crowell & Moring LLP, New York, N.Y. (Timothy J. Fierst and Jamie C. Krapf of counsel),for respondent-appellant.
In an action, inter alia, to recover damages for fraud and for a judgment declaring that a deedand two mortgages are void, the plaintiff appeals, as limited by his brief, from so much of anorder of the Supreme Court, Queens County (Cullen, J.), entered July 31, 2008, as denied thatbranch of his motion which was, in effect, for summary judgment declaring that the deed andmortgages are void, and the defendant FFFC, from now on First Franklin Financial Group,cross-appeals, as limited by its brief, from so much of the same order as denied that branch of itscross motion which was for summary judgment dismissing so much of the complaint as soughtto recover damages insofar as asserted against it and, in effect, declaring that the deed and thetwo mortgages are valid.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The Supreme Court properly denied that branch of the plaintiff's motion which was, ineffect, for summary judgment declaring that a certain deed and mortgages are void, and properlydenied that branch of the cross motion of the defendant FFFC, from now on First FranklinFinancial Group (hereinafter FFFC) which was for summary judgment dismissing so much of thecomplaint as sought to recover damages and, in effect, declaring that the deed and mortgages arevalid. The plaintiff and FFFC failed to demonstrate their respective prima facie entitlements tojudgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). The evidence they submitted in support of their respective motion and cross motionrevealed the existence of triable issues of fact as to, inter alia, the validity of the deed and themortgages (see GMAC Mtge. Corp. vChan, 56 AD3d 521, 522 [2008]; cf. Johnson v Melnikoff, 65 AD3d 519, 520-521 [2009]).
Although FFFC raises certain issues concerning those branches of its cross motion whichwere to dismiss the complaint pursuant to CPLR 3211 (a) (4), (7) and (10), inasmuch as theSupreme Court failed to determine those branches of the cross motion, they remain pending andundecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Accordingly, those issuesare not properly [*2]before this Court (see Witkowski v Escobar, 28 AD3d543, 544 [2006]; Matter of Jones vAmicone, 27 AD3d 465, 470 [2006]). Covello, J.P., Florio, Miller and Eng, JJ., concur.