Osserman v. Bartow

In an action inter alia to reform a mortgage, plaintiffs appeal from so much of (1) an order of the Supreme Court, Suffolk County, entered December 17, 1975, as (a) denied the branch of their motion which was for dismissal of the first three affirmative defenses and counterclaims contained in the amended answer of the defendants and (b) granted defendants’ cross motion for leave to serve a second amended answer and (2) a further order of the same court, dated March 2, 1976, as, upon reargument, (a) adhered to the original determination and (b) denied certain alternative requests for relief. Appeal from the order entered December 17, 1975 dismissed as academic. That order was superseded by the order of March 2, 1976. Order dated March 2, 1976 reversed insofar as appealed from, on the law, and, upon reargument of the order entered December 17, 1976, plaintiffs’ motion to dismiss the first three affirmative defenses and counterclaims is granted and defendants’ cross motion for leave to serve a second amended answer is denied. Appellants are awarded one bill of $50 costs and disbursements to cover both appeals. In view of the acceptance by the defendants of full payment of principal and interest on the second mortgage, they have failed to establish any substantial injury or damage resulting from the alleged misrepresentations of plaintiffs. They are also barred from now asserting a right to rescind the purchase agreement. Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Titone, JJ., concur.