Banco Popular North America v. Lieberman

McKeon, PJ.

(dissenting). Alluding to the terms of a mortgage and guarantee entered into among the parties, the motion court awarded summary judgment to plaintiff bank for a mistaken payment of real estate taxes made for the benefit of defendant High Tech and denied defendants’ cross motion seeking, inter alla, to amend their answer to assert various counterclaims. Since it is undisputed that, at the time of the mistaken real estate tax payment, the mortgage and guarantee had already been assigned to another bank, it was, in my view, error for the court below to rely solely on the provisions…