American Mortgage Banking, Ltd. v. Canestro

201 A.D.2d 407, 607 N.Y.S.2d 657

Opinion

Order, Supreme Court, Nassau County (Howard E. Levitt, J.), entered September 26, 1991, which granted the motion of plaintiff for an order pursuant to CPLR 3211 (b) and 3212 striking the affirmative defenses of defendants and directing entry of summary judgment to the extent of dismissing the third, fourth and sixth affirmative defenses, reforming the mortgage and note to provide for a three year balloon mortgage pursuant to the second and fifth affirmative defenses and counterclaim, and denying summary judgment dismissing the first affirmative defense of payment with leave to renew, unanimously affirmed, with costs.

The court properly dismissed the sixth affirmative defense to this foreclosure action since defendants’ unsubstantiated allegations failed to establish that the loan was usurious (see, Indig v Finkelstein, 23 NY2d 728) and since, in any event, plaintiff is exempt from the State’s usury laws (12 USC § 1735f-7). As to the fourth affirmative defense the documents sufficiently disclosed the term of the loan, and defendants, who failed to read the plain language of the loan documents and had the means of comprehending their terms by the exercise of ordinary intelligence, were properly precluded from claiming fraudulent inducement (see, Marine Midland Bank v Embassy E., 160 AD2d 420, 422).

Finally, as the mortgage and note had only a one year term in violation of General Regulations of the Banking Board (3 NYCRR) § 82.2 (e), the court properly reformed the loan documents to provide for a balloon payment mortgage of three years. Defendants have presented no reason to increase the scope of the court’s reformation. Concur — Sullivan, J. P., Ellerin, Asch and Tom, JJ.