20 East 17th Street LLC. v. 4 M Development Co.

246 A.D.2d 341, 666 N.Y.S.2d 912, 1998 N.Y. App. Div. LEXIS 33

Opinion

Order, Supreme Court, New York County (Stuart Cohen, J.), entered June 20, 1997, which granted plaintiffs motion for summary judgment in an action to foreclose a mortgage, unanimously affirmed, with costs.

The motion was properly granted, plaintiff having established a prima facie case by proof of the note, consolidated mortgage agreement, previous assignments and mortgages, and defendant-appellant’s default, and defendant having failed to come forward with evidence showing the existence of a triable issue of fact with respect to any of its affirmative defenses (see, Chemical Bank v Broadway 55-56th St. Assocs., 220 AD2d 308). We agree with the motion court that defendant’s contention that plaintiff’s predecessor orally waived the right to accelerate the mortgage debt and foreclose, despite defendant’s chronic default, fails to meet the “ ‘threshold of believability’ ” of an oral waiver necessary for a mortgagor’s reliance on Nassau Trust Co. v Montrose Concrete Prods. Corp. (56 NY2d 175; see, 220 AD2d 308, supra; Berkeley Fed. Bank & Trust v 229 E. 53rd St. Assocs., 232 AD2d 315). We have considered defendant’s other contentions and find them to be without merit. Concur— Rosenberger, J. P., Wallach, Rubin, Williams and Tom, JJ.