Barmann's Realty Sales, Inc. v. Kwilecki

— In an action to recover the money due on a bond (in lieu of mortgage foreclosure), plaintiff appeals from an order of the Supreme Court, Orange County, dated November 14, 1978, which denied its motion for summary judgment. Order modified, on the law, by adding thereto, immediately after the provision denying the motion, the following "except that plaintiffs motion for summary judgment is granted to the extent of dismissing defendant’s first and second affirmative defenses.” As so modified, order affirmed, with $50 costs and disbursements to plaintiff. Although we agree with Special Term’s implicit conclusion that a triable issue has been raised by defendant’s allegation of mutual mistake and his prayer for reformation (see Brandwein v Provident Mut. Life Ins. Co. of Phila., 3 NY2d 491, 496; Susquehanna S. S. Co. v Andersen & Co., 239 NY 285; Meyer v Lathrop, 73 NY 315), we nevertheless conclude that the court should have proceeded to grant partial summary judgment dismissing defendant’s first and second affirmative defenses (see CPLR 3212, subd [e]) which are insufficient in point of law and as to which no triable issues of fact have been raised. Mollen, P. J., Titone, Rabin, Gulotta and Gibbons, JJ., concur.