Acorn Properties, Inc. v. East 7th Realty Associates

Appellate Division of the Supreme Court of New York

Acorn Properties, Inc. v. East 7th Realty Associates

238 A.D.2d 279, 656 N.Y.S.2d 274, 1997 N.Y. App. Div. LEXIS 4307

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1997

StatusPublished

This text of 238 A.D.2d 279 (Acorn Properties, Inc. v. East 7th Realty Associates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Acorn Properties, Inc. v. East 7th Realty Associates, 238 A.D.2d 279, 656 N.Y.S.2d 274, 1997 N.Y. App. Div. LEXIS 4307 (N.Y. Ct. App. 1997).

Pincite

Opinion

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered January 12, 1996, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiffs motion for a deficiency judgment, unanimously affirmed, with costs.

Plaintiffs claims that defendant had committed fraud in procuring the mortgage and waste in managing the property, and that the exception to the nonrecourse provision of the mortgage therefore applied, was properly rejected as untimely, having been first raised only in plaintiffs reply papers on the motion. It was plaintiffs burden to come forward with evi[280]*280dence, if not in the foreclosure proceeding then certainly in its motion for a deficiency judgment, that defendant had violated a condition of the nonrecourse mortgage (cf., e.g., First Nationwide Bank v Brookhaven Realty Assocs., 223 AD2d 618, lv dismissed 88 NY2d 963). Moreover, the claim of fraud lacks merit (see, FGH Realty Credit Corp. v Bonati, 226 AD2d 188). Concur—Murphy, P. J., Sullivan, Rosenberger, Rubin and Andrias, JJ.

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—Order, Supreme Court, New York County (Elliott Wilk, J.), entered January 12, 1996, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiffs motion for a deficiency judgment, unanimously affirmed, with costs.

Plaintiffs claims that defendant had committed fraud in procuring the mortgage and waste in managing the property, and that the exception to the nonrecourse provision of the mortgage therefore applied, was properly rejected as untimely, having been first raised only in plaintiffs reply papers on the motion. It was plaintiffs burden to come forward with evi[280]*280dence, if not in the foreclosure proceeding then certainly in its motion for a deficiency judgment, that defendant had violated a condition of the nonrecourse mortgage (cf., e.g., First Nationwide Bank v Brookhaven Realty Assocs., 223 AD2d 618, lv dismissed 88 NY2d 963). Moreover, the claim of fraud lacks merit (see, FGH Realty Credit Corp. v Bonati, 226 AD2d 188). Concur—Murphy, P. J., Sullivan, Rosenberger, Rubin and Andrias, JJ.

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Bluebook (online)

238 A.D.2d 279, 656 N.Y.S.2d 274, 1997 N.Y. App. Div. LEXIS 4307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acorn-properties-inc-v-east-7th-realty-associates-nyappdiv-1997.

Opinion

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