Scappaticci v. Willet , 173 A.D.2d 533 ( 1991 )

—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), entered August 14, 1989, which denied his motion for summary judgment.

Ordered, that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment of foreclosure.

The defendant Ursula Willet’s only defense to the present action to foreclose a mortgage consists of her claim that the plaintiff mortgagee conspired with her former attorney, Jack Solerwitz, to defraud her. The most that the evidence in the record establishes is that the plaintiff mortgagee made several loans to individuals who were clients of Mr. Solerwitz, and that some of these individuals improvidently gave the proceeds of these loans to Mr. Solerwitz in return for his promise to make the payments to the plaintiff. However, there is no evidentiary proof in admissible form to support the position of the defendant Ursula Willet that the plaintiff, who denied ever speaking to Mr. Solerwitz, made misrepresentations himself, or otherwise participated in a scheme to defraud. There is nothing in the record which indicates the existence of a triable issue of fact on the defense of fraud (see, Bank for Sav. v Rellim Constr. Co., 260 App Div 70, affd 285 NY 708; Barclays Bank v Sokol, 128 AD2d 492; 78 NY Jur 2d, Mortgages and Deeds of Trust, § 600, at 473). Also, the defendant Ursula Willet is not entitled to denial of the present motion with leave to renew after further discovery (CPLR 3212 [f]), since she has failed to show the existence of evidence to which such disclosure might lead (see, e.g., American Prescription Plan v American Postal Workers Union, 170 AD2d 471) and since she failed to take reasonable steps to obtain disclosure earlier (see, e.g., Monteleone v Incorporated Vil. of Floral Park, 123 AD2d 312). Kunzeman, J. P., Balletta, Miller and O’Brien, JJ., concur.