Opinion
December 18, 1995
Appeal from the Supreme Court, Nassau County (O'Brien, J.).
Ordered that the order is reversed, on the law, with costs, and the motion and the cross motion are denied.
It is axiomatic that summary judgment is a drastic remedy which should only be granted if it is clear that no material issues of fact have been presented. Issue finding, rather than issue determination, is the court's function (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). If there is any doubt about the existence of a triable issue of fact or if a material issue of fact is arguable, summary judgment should be denied (Museums at Stony Brook v Village of Patchogue Fire Dept., 146 A.D.2d 572), particularly in a case such as this one (see, Community Natl. Bank Trust Co. v McClammy, 138 A.D.2d 339).
The deposition testimony of the elderly mortgagor, who died during the pendency of this action, raises triable issues about the circumstances surrounding the execution of the mortgage. It is uncontroverted that the mortgage was arranged by a third party who has since been convicted of defrauding the mortgagor of the proceeds of the mortgage. Other than the testimony of the mortgagor, the record is silent concerning the actions of the representatives of the third-party defendant in connection with this most unusual mortgage application. The record is also silent concerning the assignment of the mortgage to the plaintiff and the relationship, if any, between the plaintiff and the third-party defendant. We note that the plaintiff and the third-party defendant have been represented by the same attorneys before both the Supreme Court and this Court, thus suggesting that their relationship may be other than arms-length. In light of the obvious fraud perpetrated in this case, the testimony that the third-party defendant allegedly tendered blank papers to be signed by the elderly mortgagor (who was to pay interest at 19%, clearly a very high rate), and the absence of evidence concerning the circumstances surrounding the assignment of the mortgage, all of which may still be explored at examinations before trial, the Supreme Court improperly granted summary judgment to the plaintiff and dismissed the third-party complaint. Bracken, J.P., Sullivan, Miller and Florio, JJ., concur.