Albany Savings Bank v. Clifton Park Equity Developers, Ltd.

Appellate Division of the Supreme Court of New York

Albany Savings Bank v. Clifton Park Equity Developers, Ltd.

46 A.D.2d 823, 360 N.Y.S.2d 512, 1974 N.Y. App. Div. LEXIS 3700

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

DecidedNovember 7, 1974

StatusPublished

This text of 46 A.D.2d 823 (Albany Savings Bank v. Clifton Park Equity Developers, Ltd.) 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

Albany Savings Bank v. Clifton Park Equity Developers, Ltd., 46 A.D.2d 823, 360 N.Y.S.2d 512, 1974 N.Y. App. Div. LEXIS 3700 (N.Y. Ct. App. 1974).

Pincite

Opinion

Appeal from an order of the Supreme Court at Special Term, entered February 20, 1974 in Saratoga County, which granted plaintiff’s motion for summary judgment. Plaintiff in the instant action [824]*824seeks to foreclose on a mortgage on property owned by the corporate defendant plus recover indemnity from the individual coguarantors on the corporate note for any deficiency. Despite all the arguments raised by the defendants there appears to be no factual issue that at least $7,600 was owed the plaintiff on the mortgage indebtedness in June of 1973, and that at least this amount was not paid following demand for payments on June 12, 1973. Thus, irrespective of -any other contentions summary judgment ordering foreclosure and sale was properly granted (Graf v. Mope Bldg. Gorp., 254 N". Y. 1; Neubauer v. Smith, 40 A D 2d 790). Even assuming arguendo that the plaintiff returned in bad faith the cheeks for $7,630, which plaintiff asserts it did on request of the mortgagor because the checks would be dishonored for insufficient funds, no satisfactory explanation is given by the mortgagor for its failure to pay such balance upon return of the checks and threat of acceleration. Even if the mortgagor feared that a new tender of $7,630 would waive its rights under the extension agreement, it could have written a letter to accompany tender reserving its right to the extended term, or at least made some written communication of its position. The mortgagor submitted no evidence either by affidavit or document of such attempt to reserve rights. Absent such evidence, no issue of fact as to the wrongfulness qf the nonpayment is raised. We find no merit in the additional contentions raised by the defendants, and, accordingly, the order appealed from should be affirmed. Order affirmed, with costs. Herlihy, P. J., Sweeney, Kane, Main and Reynolds, JJ., concur.

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Appeal from an order of the Supreme Court at Special Term, entered February 20, 1974 in Saratoga County, which granted plaintiff’s motion for summary judgment. Plaintiff in the instant action [824]*824seeks to foreclose on a mortgage on property owned by the corporate defendant plus recover indemnity from the individual coguarantors on the corporate note for any deficiency. Despite all the arguments raised by the defendants there appears to be no factual issue that at least $7,600 was owed the plaintiff on the mortgage indebtedness in June of 1973, and that at least this amount was not paid following demand for payments on June 12, 1973. Thus, irrespective of -any other contentions summary judgment ordering foreclosure and sale was properly granted (Graf v. Mope Bldg. Gorp., 254 N". Y. 1; Neubauer v. Smith, 40 A D 2d 790). Even assuming arguendo that the plaintiff returned in bad faith the cheeks for $7,630, which plaintiff asserts it did on request of the mortgagor because the checks would be dishonored for insufficient funds, no satisfactory explanation is given by the mortgagor for its failure to pay such balance upon return of the checks and threat of acceleration. Even if the mortgagor feared that a new tender of $7,630 would waive its rights under the extension agreement, it could have written a letter to accompany tender reserving its right to the extended term, or at least made some written communication of its position. The mortgagor submitted no evidence either by affidavit or document of such attempt to reserve rights. Absent such evidence, no issue of fact as to the wrongfulness qf the nonpayment is raised. We find no merit in the additional contentions raised by the defendants, and, accordingly, the order appealed from should be affirmed. Order affirmed, with costs. Herlihy, P. J., Sweeney, Kane, Main and Reynolds, JJ., concur.

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Bluebook (online)

46 A.D.2d 823, 360 N.Y.S.2d 512, 1974 N.Y. App. Div. LEXIS 3700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albany-savings-bank-v-clifton-park-equity-developers-ltd-nyappdiv-1974.