First Trust National Ass'n v. DeLuca

—In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 30, 1999, as, upon reargument, in effect, denied its motion for summary judgment. Ordered that the order is affirmed, with costs. Although not raised in the answer of the respondent’s precedessor-in-interest, the Supreme Court properly considered the affirmative defenses of forgery, Statute of Frauds, and lack of authority raised by the respondent in opposition to the ap 495 pellant’s motion for summary judgment (see, Rizzi v Sussman, 9 AD2d 961). In opposition to the appellant’s prima facie showing of entitlement to summary judgment, the respondent raised triable issues of fact including, inter alia, the validity of a letter from the respondent’s predecessor-in-interest indicating its agreement to subordinate its mortgage to that of the appellant (cf., Zuckerman v City of New York, 49 NY2d 557, 562). As there remain factual questions regarding the validity of the letter, the applicability of the doctrine of equitable subrogation may not be determined as a matter of law (see, Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 680). Bracken, P. J., O’Brien, Goldstein and McGinity, JJ., concur.