Opinion
June 3, 1996
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion is granted, the answer and counterclaims of the defendant Elease Bowers are stricken, Avstar Mortgage Corporation and DMD Equities Corp. are deleted as additional parties, the caption is amended by changing the name "John Doe" to John Bowers and Mary Long, and by changing the name "Elease Bowers" to Elease Bowers also known as Elaise Bowers, and the matter is remitted to the Supreme Court, Kings County, for the appointment of a Referee to compute the total sums due and owing to the plaintiff pursuant to the mortgage.
The plaintiff, an assignee of the mortgage which is the subject of this action, established a prima facie case by submitting proof of the mortgage and note and the respondent's default in payment ( see, North Fork Bank v. Hamptons Mist Mgt. Corp., 225 A.D.2d 596). The respondent failed to come forward with any evidence to support her defenses and counterclaims. While the respondent may have been defrauded by the home improvement contractor to whom she transferred a portion of the loan proceeds, that is not a defense to this foreclosure action. There is no evidence that the original mortgagee had any relationship with the contractor or participated in or had knowledge of the contractor's alleged fraudulent conduct ( see, First Family Mtge. Corp. v. Lubliner, 113 A.D.2d 868). In addition, contrary to the conclusion of the Supreme Court, the attorney representing the mortgagee did not owe any duty to the respondent at the closing ( see, Banque Nationale de Paris v. 1567 Broadway Ownership Assocs., 214 A.D.2d 359). Consequently, the court erred in denying the plaintiff's motion. Thompson, J.P., Altman, Goldstein and McGinity, JJ., concur.