finding affidavit could not prevent summary judgment where "[t]he only evidence offered by the appellant of any such representation [by plaintiff] is the appellant's husband's affidavit which contained unsubstantiated and self-serving statements, based wholly on hearsay"Summary of this case from J-Bar Reinforcement Inc. v. Crest Hill Capital LLC
October 10, 1989
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the judgment is affirmed, with costs.
We find that the appellant waived the right to assert that the plaintiff's failure to perform a condition precedent set forth in the mortgage bars the instant foreclosure action, as this defense was never raised in the appellant's answer or in any motion by the appellant to amend her answer (see, CPLR 3015 [a]; Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201; Karel v Clark, 129 A.D.2d 773). Furthermore, the defense was never raised in response to the plaintiff's motion for summary judgment, and cannot be raised for the first time on appeal (see, Bichler v Lilly Co., 55 N.Y.2d 571; Moore v Leaseway Transp. Corp., 49 N.Y.2d 720; Nelson v Time Sq. Stores Corp., 110 A.D.2d 691).
We also find no merit to the appellant's assertion that the plaintiff's representation that it did not require timely mortgage payments should estop the plaintiff from commencing the instant action. The only evidence offered by the appellant of any such representation is the appellant's husband's affidavit which contained unsubstantiated and self-serving statements, based wholly on hearsay. As such, we find that the affidavit is insufficient to defeat the motion for summary judgment (see, Zuckerman v City of New York, 49 N.Y.2d 557; Eddy v Tops Friendly Mkts., 91 A.D.2d 1203, affd 59 N.Y.2d 692; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255).
Lastly, we find the Supreme Court did not improvidently exercise its discretion when it denied the appellant's motion to amend her answer to allege a counterclaim in tort for the plaintiff's alleged wrongful actions in entering the property at issue for the purpose of boarding up the building. When a motion for summary judgment is granted in its entirety, a cross motion to amend the answer is moot when the cross motion seeks a determination that could not have any practical effect on the existing controversy (see, Lighting Horizons v Kahn Co., 120 A.D.2d 648). At bar, the amended answer requested by the appellant included only a supplemental counterclaim, the outcome of which would have no effect on the foreclosure action (see, Federal Natl. Mtge. Assn. v Palmer, 53 A.D.2d 601). Thus, the appellant was properly granted leave to commence a new action against the plaintiff with respect to the issues raised in the counterclaim. Brown, J.P., Eiber, Kooper and Rosenblatt, JJ., concur.