Opinion
December 21, 1970
Appeal from an order of the County Court of St. Lawrence County at Special Term, entered July 22, 1970, which granted plaintiff's motion for summary judgment. The mortgage sought to be foreclosed was given by Fresht Properties Corp. to plaintiff, was dated May 28, 1968 and was recorded in the St. Lawrence County Clerk's office on June 13, 1968 at 10:26 A.M. A deed covering the same premises, from said mortgagor to appellant, was dated May 23, 1968 and recorded in said office on the same day as the mortgage but eight minutes thereafter. There is proof of mailing the mortgage and three deeds to the mortgagor to the County Clerk's office but nothing as to the method or person delivering appellant's deed for recording. It is claimed that a mortgage as well as a deed was given to appellant, that the mortgage was not recorded, that appellant has discharged the attorney who represented him in the transaction and that the matter has been referred to a specified District Attorney. It appears from the opposing affidavits that facts essential to justify opposition may have existed but could not then be stated and, in view of the incompleteness of the present record, the motion should be denied in the interests of justice (CPLR 3212, subd. [f]; Rosenthal v. Manufacturers Hanover Trust Co., 30 A.D.2d 650). Order reversed, on the law and the facts, with costs, and motion denied. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.