
    Odette Realty Company, Respondent-Appellant, v 251 West 92nd Corp., Appellant, and Capital Aid Corp. of South Carolina, Respondent-Appellant, et al., Defendants. (And a Counterclaim Action.)
    [628 NYS2d 95]
   Order, Supreme Court, New York County (Stanley Parness, J.), entered June 16, 1994, which, to the extent appealed from, denied defendant 251 West 92nd Corp.’s motion to dismiss the complaint and to permanently enjoin plaintiff from seeking foreclosure of a mortgage on the building located at 251 West 92nd Street, and order, same court and Justice, entered on or about January 3, 1995, which, inter alia, denied plaintiff’s motion for summary judgment, denied defendant 251 West 92nd Corp.’s motion to dismiss, to discharge the receiver and to require plaintiff to turn over records, and denied all of the relief requested in the cross motion of defendant Capital Aid Corp. of South Carolina, except to the extent of granting Capital Aid Corp. of South Carolina leave to serve an answer to the complaint, unanimously affirmed, without costs.

The IAS Court properly declined to grant summary judgment upon the conflicting evidence and affidavits presented by the parties (see, Communications & Entertainment Corp. v Hibbard Brown & Co., 202 AD2d 191). There are substantial issues of fact regarding, among others, whether Claire Friedlander impacted Odette’s rights to collect and retain the proceeds of the mortgage note, and in light of the substantial issues of fact regarding the validity of the purported assignment, physical possession of the mortgage note by Capital Aid Corp. of South Carolina is not dispositive at this juncture in the proceedings.

Defendant 251 West 92nd Corp.’s motion to reimpose a restraint on the receivership of the property in question is denied. Motion to reimpose a stay of the receivership is denied. Concur—Rosenberger, J. P., Wallach, Rubin and Mazzarelli, JJ.  