Spencer v. Hylton-Spencer

The court erred in denying that branch of the appellants’ motion which was for renewal of their motion for summary judgment dismissing the third-party complaint. The appellants proffered a bank appraisal of the subject property that was unavailable at the time of the original motion because it could not be found by the mortgagee who possessed it (see, Schumann v City of New York, 242 AD2d 616; Matter of Bernstein v Mitgang, 242 AD2d 328; 12 Weinstein-Korn-Miller, NY Civ Prac ¶ 5701.24). However, even when the appraisal is considered, the appellants are not entitled to summary judgment. There are issues of fact as to whether the conveyance was made with the intent to hinder or delay the respondent’s effort to enforce her interest in the subject property (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562).

The appellants’ remaining contentions are without merit.

Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.