Gray Wolf Corp. v. Gleason Estates Associates, LP

Plaintiff commenced this foreclosure action and thereafter moved for summary judgment on the complaint, and defendant cross-moved for summary judgment dismissing it. We note at the outset that Supreme Court properly concluded that defendant was under no obligation to provide plaintiff with certain annual financial statements in accordance with the terms of the various documents executed both between the par*1253ties and between the parties and the United States Department of Housing and Urban Development. We further conclude that the court properly denied plaintiffs motion for summary judgment on the foreclosure complaint because, on the record before us, there is an issue of fact whether defendant was in default (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). For that same reason, however, we conclude that the court erred in granting defendant’s cross motion for summary judgment dismissing the complaint, and we therefore modify the order accordingly. Present — Scudder, EJ., Smith, Garni, Lindley and Martoche, JJ.