Opinion
August 7, 1995
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the appeal from the order dated June 22, 1993, is dismissed, as that order was superseded by the order dated September 23, 1993, made upon reargument; and it is further,
Ordered that the order dated September 23, 1993, made upon reargument is modified, on the law, by deleting the provision thereof which granted the plaintiff's motion and substituting therefor a provision denying the plaintiff's motion in all respects; as so modified, the order dated September 23, 1993, is affirmed insofar as appealed from, and so much of the order dated June 22, 1993, as granted the plaintiff's motion is vacated; and it is further,
Ordered that the order dated September 23, 1993, which, inter alia, granted the plaintiff's motion to appoint a Referee is reversed and the plaintiff's motion is denied; and it is further,
Ordered that the appellants are awarded one bill of costs.
Although the court was correct in denying the appellants' cross motion for summary judgment dismissing the plaintiff's complaint insofar as it is asserted against them, it improperly granted the plaintiff's motion for summary judgment insofar as the complaint is asserted against the appellants. With respect to the plaintiff's cause of action to reform the mortgage which he presently seeks to foreclose, the plaintiff failed to meet the heavy burden necessary to show that the property which he seeks to include in the mortgage was excluded therefrom by mutual mistake (see, Chimart Assocs. v. Paul, 66 N.Y.2d 570; Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219). Nor was the plaintiff entitled to summary judgment on his cause of action to foreclose the mortgage. The appellants' papers submitted in opposition to the motion sufficiently raised triable issues of fact with respect to whether the appellants entered into the underlying contract secured by the subject mortgage on which they subsequently defaulted as a result of economic duress (see, 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447, 451; Austin Instrument v. Loral Corp., 29 N.Y.2d 124, 130; Sosnoff v. Carter, 165 A.D.2d 486, 491). Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.