Prudential Insurance v. Kelly

—In a mortgage foreclosure action, the defendant Toni Ann Kelly appeals (1) from an order of the Supreme Court, Westchester County (Donovan, J.), entered December 20, 1989, which granted the plaintiff’s motion for summary judgment, and (2), as limited by her brief, from so much of an order of the same court, entered May 7, 1990, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order entered December 20, 1989, is dismissed, as that order was superseded by the order entered May 7, 1990, made upon reargument; and it is further,

Ordered that the order entered May 7, 1990, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court properly found in favor of the plaintiff on the merits because the answer raised in only the most conclusory terms a defense based upon fraud. Not only did the appellant fail to set forth the "circumstances constituting the wrong”, but she also failed to plead any of the material elements of a defense of fraud (see, CPLR 3013, 3016 [b]). Moreover, the appellant’s allegation in opposition to the plain*718tiffs motion for a judgment of foreclosure failed to establish any actionable fraud on the part of the original mortgagee, the plaintiff’s predecessor in interest. In any event, any fraud committed by the seller and his attorney in this case could not defeat the plaintiff’s right to foreclose the mortgage (see, Jo Ann Homes v Dworetz, 25 NY2d 112, 122; First Family Mgt. Corp. v Lubliner, 113 AD2d 868; 2A Warren’s Weed, New York Real Property, Foreclosure of Mortgage, ¶ 10.12 [4th ed]; 78 NY Jur 2d, Mortgages, § 600). Thompson, J. P., Kunzeman, Lawrence and Balletta, JJ., concur.