Opinion
March 23, 1999
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
The issues raised in connection with the Weinsteins' cross claim to recover amounts paid by them in satisfaction of a deficiency judgment are distinct from those raised by plaintiff bank in its action to foreclose the mortgage affecting the premises conveyed by the Weinsteins to the Callahans, and were not addressed, much less disposed of, in the earlier order granting plaintiff bank's motion for summary judgment. Thus, the issues pertinent to the cross claim were properly addressed by the motion court. Thereupon, such issues were correctly decided. The terms of the assumption clause in the Condominium Deed, the execution of which was not contested, establish the Callahans' liability pursuant to General Obligations Law § 5-705, as a matter of law ( see, 1 Bergman, New York Mortgage Foreclosures § 12.04 [2]; Schley v. Fryer, 100 N.Y. 71).
Concur — Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.