Sudit v. Schapiro

The Supreme Court erred in granting, on condition, those branches of the plaintiffs motion which were for summary judgment against the appellants Schneuer Z. Schapiro and Chana Shapiro, the owners of the subject condominium unit, and Wells Fargo Bank (hereinafter Wells Fargo), which had issued a mortgage on the subject condominium unit and for the appointment of a referee to compute. In opposition to the plaintiffs prima facie showing of entitlement to summary judgment, and for the appointment of a referee to compute, the appellants raised a triable issue of fact as to whether the 1997 mortgages had been orally modified, whether there had been part performance of the alleged oral 969 agreement, and whether such part performance was unequivocally referable to the alleged oral agreement (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235-236 [1999]; Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Rose v Spa Realty Assoc., 42 NY2d 338, 343-344 [1977]; Luft v Luft, 52 AD3d 479, 480-481 [2008]; Travis v Fallani & Cohn, 292 AD2d 242, 244 [2002]; Sarcona v DeGiaimo, 226 AD2d 1143 [1996]; General Obligations Law §§ 5-703, 15-301 [1], [2]). In light of our determination, a joint trial of the instant action with the two related actions would be inappropriate, as it would result in prejudice to a substantial right of the appellants (see Skelly v Sachem Cent. School Dist., 309 AD2d 917, 917-918 [2003]). The parties’ remaining contentions either have been rendered academic in light of our determination or are without merit. Spolzino, J.P., Dillon, Carni and Leventhal, JJ., concur.