Allied Building Credits, Inc. v. Vallieu

Appeal from an order of the Supreme Court, Montgomery County, striking appellants’ answer as sham and frivolous and granting summary judgment in favor of respondent. Respondent seeks to foreclose an alleged mortgage on appellants’ premises. Appellants in their answer and affidavits in opposition to the motion to strike assert that they did not execute a mortgage on the premises in dispute and that if their signatures appear on such a document they were obtained through fraud or deceit. First we agree with appellants’ contention that the alleged mortgage should have been produced and considered by the court below prior to rendering summary judgment (see La Salle Extension Univ. v. Mandel, 27 N. Y. S. 2d 625). Additionally we do not find appellants’ answer sham and frivolous. If events-transpired as appellants allege, it could well be that they are unaware as to how the document in question came into existence. The papers before the Special Term presented factual issues. Order and judgment reversed, with costs to abide the event. Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.