Federal National Mortgage Association, Respondent, v. Shirley Woodbury, Also Known as Shirley Dupree, Appellant, et al., Defendants

Federal National Mortgage Association, Respondent, v Shirley Woodbury, Also Known as Shirley Dupree, Appellant, et al., Defendants. [679 NYS2d 116] [MAJORITY] Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered August 27, 1997, which, in an action to foreclose a mortgage, granted plaintiffs motion for partial summary judgment and denied defendant-appellant’s cross motion for summary judgment or consolidation, unanimously modified, on the facts, to consolidate the remaining portion of the instant action (Bronx County Index No. 16997/94) with appellant’s action to set aside the subject mortgage (Bronx County Index No. 16949/91), and otherwise affirmed, without costs. Even if, as appellant contends, her signature on the subject mortgage was forged, partial summary judgment was properly granted to plaintiff on the theory of equitable subrogation, based on its payoff of prior mortgages against appellant’s property at the closing of the subject mortgage (Great E. Bank v Chang, 227 AD2d 589, lv dismissed 88 NY2d 1064). Nor was it error for the motion court to grant summary judgment on this unpleaded theory absent prejudice to appellant (see, Torrioni v Unisul, Inc., 214 AD2d 314). As to the remaining portion of this action, there is, at best, a question of fact concerning the alleged forgery of the subject mortgage given the notarization of appellant’s signature on the pertinent documents (see, Orix Credit Alliance v Fan Sy Prods., 215 AD2d 113). However, we modify so as to consolidate the remaining portion of this action with appellant’s action attacking the validity of the subject mortgage. Concur — Milonas, J. P., Williams, Andrias and Saxe, JJ.