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EASTERN SAVINGS BANK, FSB, respondent, v. SARA M. STERN, ET AL., defendants, ISRAEL DRILLICK, appellant.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

After the plaintiff commenced the instant mortgage foreclosure action, the defendant Israel Drillick asserted in his amended answer, inter alia, that the subject mortgage was void as against his earlier recorded deed for the purchase of a portion of the subject property pursuant to Real Property Law § 291. Drillick then moved, inter alia, to vacate the plaintiff's jury demand The Supreme Court denied that branch of Drillick's motion which was to vacate the plaintiff's jury demand, finding that the plaintiff was entitled to a jury trial with respect to Drillick's statutory defense. Drillick then moved for leave to reargue the denial of that branch of the motion which was to vacate the plaintiff's jury demand The Supreme Court granted reargument, and upon reargument, adhered to its original determination.

Contrary to Drillick's contention, the plaintiff was entitled to a jury trial since the dispute between Drillick and the plaintiff involved competing claims to real property ( see Cilwick v. Camelo, 55 A.D.2d 782) and Drillick's affirmative defense asserting of Real Property Law § 291 was not incidental to the mortgage foreclosure ( cf. R.C.P.S. Assocs. v. Karam Developers, 213 A.D.2d 612; April M's Enters. v. Scott, 178 A.D.2d 572).

ALTMAN, J.P., COZIER, MASTRO and RIVERA, JJ., concur.

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EASTERN SAV. BANK v. STERN
(Jan 26, 2004)