Opinion
December 15, 1980
In an action to foreclose a mortgage, defendant East Coast Wholesalers, Inc., appeals from so much of an order of the Supreme Court, Westchester County, entered April 25, 1980, as granted plaintiff's motion to dismiss its affirmative defense of fraud. Order affirmed insofar as appealed from, without costs or disbursements. While fraud in the inducement of the senior mortgage may, in certain cases, be asserted by a junior lienor as an affirmative defense to a foreclosure action, fraud in inducing the junior lien, where the senior mortgage is not attacked, is no defense to an action to foreclose the latter. (See D G Girl Coat Co. v. Kafka, 218 App. Div. 607, affd 245 N.Y. 646.) Mangano, J.P., Gibbons, Gulotta and O'Connor, JJ., concur.