Opinion
April 27, 1998
Appeal from the Supreme Court, Westchester County (Rudolph, J.).
Ordered that the appeal from that portion of the order which denied the appellant's motion for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order is reversed insofar as reviewed, the order entered October 2, 1996, is vacated, and the plaintiff's motion for summary judgment is denied; and it is further,
Ordered that the appellant is awarded one bill of costs.
The plaintiff, the assignee of a note and mortgage executed by the appellant, commenced this action to foreclose the mortgage when the appellant defaulted in making payment. An assignee of a mortgage takes subject to all defenses and counterclaims that can be asserted against the assignor ( see, Hammelburger v. Foursome Inn Corp., 54 N.Y.2d 580, 586; Caprara v. Charels Ct. Assocs., 216 A.D.2d 722; Granick v. Mobach, 13 A.D.2d 534). Upon our review of the record, we find that triable issues of fact exist concerning the appellant's defenses of fraud and usury which preclude summary judgment.
Mangano, P.J., Miller, Pizzuto and Krausman, JJ., concur.