Opinion
October 22, 1998
Appeal from the Supreme Court, Bronx County (Kenneth Thompson, Jr., J.).
Even if, as appellant contends, her signature on the subject mortgage was forged, partial summary judgment was properly granted to plaintiff on the theory of equitable subrogation, based on its payoff of prior mortgages against appellant's property at the closing of the subject mortgage ( Great E. Bank v. Chang, 227 A.D.2d 589, lv dismissed 88 N.Y.2d 1064). Nor was it error for the motion court to grant summary judgment on this unpleaded theory absent prejudice to appellant ( see, Torrioni v. Unisul, Inc., 214 A.D.2d 314). As to the remaining portion of this action, there is, at best, a question of fact concerning the alleged forgery of the subject mortgage given the notarization of appellant's signature on the pertinent documents ( see, Orix Credit Alliance v. Fan Sy Prods., 215 A.D.2d 113). However, we modify so as to consolidate the remaining portion of this action with appellant's action attacking the validity of the subject mortgage.
Concur — Milonas, J. P., Williams, Andrias and Saxe, JJ.