Summary
holding that mortgage broker's fraudulent actions may not be imputed to the lender if the broker had to have concealed the fraud from the lender for the fraud to succeed
Summary of this case from In re LozanoOpinion
December 16, 1997
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
Counsel's conclusory assertion that prior counsel's affirmation in opposition to the motion for summary judgment was not submitted because of "confusion generated by substitution of attorneys" was properly rejected by the LAS Court as an inadequate excuse for defendant's default ( see, Transit Graphics v. Arco Distrib., 202 A.D.2d 241; Correa v. Ahn, 205 A.D.2d 575). Nor was a meritorious defense shown. Though the power of attorney used to execute the mortgage on defendant's behalf may have been forged by her son, defendant did acquire title through that transaction, and it would be plainly unjust to confer a windfall upon her by denying plaintiff an equitable lien. Concerning the second motion, the affidavit of defendant's son that he forged defendant's power of attorney in furtherance of a conspiracy he entered into with the mortgage brokers by whom he was employed did not present any new information not available when the first motion was submitted, and thus the motion should have been denied without consideration given to the affidavit ( see, Mucciola v. City of New York, 177 A.D.2d 553). In any event, defendant's argument that the mortgage brokers were plaintiff's agents fails on its own terms because the fraud, as described in the son's affidavit, was such that the brokers clearly had to withhold facts from plaintiff, and thus the brokers' knowledge cannot be imputed to plaintiff ( see, Quintel Corp. v. Citibank, 606 F. Supp. 898, 913). Consolidation was properly denied on the ground that the actions involve different properties, lenders, procedural histories and facts concerning defendant's prior ownership interests. We have considered defendant's other arguments and find them to be without merit.
Concur — Wallach, J.P., Nardelli, Tom, Mazzarelli and Colabella, JJ.