Peter Hamill, Respondent, v. Denis Hamill et al., Defendants, and Joan Hamill, Appellant

Peter Hamill, Respondent, v Denis Hamill et al., Defendants, and Joan Hamill, Appellant. [600 NYS2d 765] [MAJORITY] In an action to foreclose a mortgage, the defendant Joan Hamill appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Bernstein, J.), entered January 4, 1991, which, inter alia, granted the plaintiff Peter Hamill’s motion to confirm a Referee’s report directing the sale of the subject property. Ordered that the order and judgment is affirmed, with costs. The defendant-appellant Joan Hamill’s main defense to the present action to foreclose a mortgage consists of a claim that the plaintiff mortgagee Peter Hamill conspired with his brother, her estranged husband, Denis Hamill, to defraud her. At a hearing before the Referee, the evidence established that Peter Hamill purchased the mortgage from the original mortgagee in August 1986, after Joan Hamill and her husband were four months delinquent in payment and the full amount of the mortgage had become due and payable. Peter Hamill testified that he had purchased the mortgage to protect Joan and Denis Hamill, who were involved in contested divorce proceedings, from imminent foreclosure. It was Peter Hamill’s understanding that he would be repaid the mortgage amount and other expenses when the property was sold. Peter Hamill commenced this action to foreclose the mortgage one year after the assignment of the mortgage to him because Joan and Denis Hamill continued to fail to make payments. While there was evidence that Denis Hamill owed Peter Hamill prior debts separate from the mortgage, and that he repaid these loans to the mortgagee subsequent to the assignment, there was no evidentiary proof to support the position that Peter Hamill or his accountant ever participated in a “scheme” to defraud Joan Hamill (see, Scappaticci v Willet, 173 AD2d 533). We have considered the appellant’s remaining contentions and find them to be without merit. Thompson, J. P., Rosenblatt, Miller and Pizzuto, JJ., concur.