Opinion
July 28, 1980
In a mortgage foreclosure action, plaintiffs appeal from an order of the Supreme Court, Suffolk County, dated July 27, 1979, which denied their motion for summary judgment. Order modified, on the law, by adding thereto after the word "denied" the following: "except as to the defendants' first affirmative defense as to which summary judgment is granted to the plaintiffs." As so modified, order affirmed, without costs or disbursements. We reject plaintiffs' argument that defendants are collaterally estopped from asserting all but one of the affirmative defenses and counterclaims interposed in their amended answer. The decision in which plaintiffs allege those defenses and counterclaims were previously decided reveals that the court granted summary judgment to the plaintiff therein solely because of deficiencies in the defendants' opposition papers. There is no indication that the court reached the merits of the proffered defenses and counterclaims. Under such circumstances, there is no justification for imposing an estoppel here. As to the lone remaining affirmative defense, the alleged failure of consideration for the mortgage and note, we find that defendants' proof does not suffice to create an issue of fact. Therefore, summary judgment should be granted to the plaintiffs with respect to said affirmative defense. Gulotta, J.P., Margett, O'Connor and Weinstein, JJ., concur.