Opinion
July 30, 1973
In an action to foreclose second and third mortgages on real property, defendant appeals from an order of the Supreme Court, Kings County, dated August 8, 1972, which granted plaintiff's motion for summary judgment. Order modified by adding to the decretal paragraph thereof, immediately after the words that the motion "is hereby granted", the following: "as to the second mortgage and denied as to the third mortgage." As so modified, order affirmed, without costs. The fifth affirmative defense alleges an agreement by plaintiff to refrain from foreclosing the third mortgage under the circumstances pleaded. The matter pleaded is a sufficient defense in law, as a matter of mere pleading (see Potter v. Thomashow, 271 App. Div. 878). Since no reply was permitted, the matter pleaded is deemed denied (CPLR 3011; 3018). The allegations in question were supported by evidentiary matter. There thus exists a material and triable issue of fact, which bars plaintiff from summary judgment as to the third mortgage. Martuscello, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.