Beneficial New York, Inc. v. McGovern

Appellate Division of the Supreme Court of New York

Beneficial New York, Inc. v. McGovern

207 A.D.2d 369, 616 N.Y.S.2d 220, 1994 N.Y. App. Div. LEXIS 8211

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

DecidedAugust 8, 1994

StatusPublished

Cited by1 cases

This text of 207 A.D.2d 369 (Beneficial New York, Inc. v. McGovern) 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

Beneficial New York, Inc. v. McGovern, 207 A.D.2d 369, 616 N.Y.S.2d 220, 1994 N.Y. App. Div. LEXIS 8211 (N.Y. Ct. App. 1994).

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Opinion

—In an action to foreclose a mortgage, the defendants Patrick McGovern and Sheila McGovern appeal from an order of the Supreme Court, Rockland County (Meehan, A. J.), dated December 22, 1992, which granted the plaintiff’s motion for foreclosure.

Ordered that the order is affirmed, with costs.

In 1987, the plaintiff brought an action to foreclose a second mortgage under which the appellants were the mortgagors. In 1984, the parties entered into a stipulation of settlement, which required that the appellants pay the amount due under their mortgage in three separate payments, and the plaintiff clear the appellants’ credit report of any history of the default in mortgage payments. The appellants ceased to make the required payments, contending that the plaintiff had failed to comply with the condition precedent of correcting the credit information. Based upon the appellants’ default, the plaintiff proceeded with the foreclosure. In June 1992 the Supreme Court ordered that the plaintiff comply with the terms of the stipulation of settlement within a 90-day period, and that upon any further default of the appellants, if any, the plaintiff could ask for appointment of a Referee to determine the amount due under the mortgage and for a judgment of foreclosure and sale. The record indicates that the plaintiff complied, but the appellants continued to be in default.

On this appeal, the appellants continue to argue that the plaintiff materially breached the condition precedent, even though the plaintiff has now complied with that condition. In failing to raise the issue or the timeliness of the plaintiff’s [370]*370compliance in the Supreme Court, Rockland County, the appellants failed to preserve the issue for appellate review, and we decline to review it in the exercise of our discretion. In any event, in light of the fact that the plaintiff fulfilled its obligations and the appellants did not, it was not error for the Supreme Court to proceed with the foreclosure action. Rosenblatt, J. P., Miller, Ritter and Santucci, JJ., concur.

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—In an action to foreclose a mortgage, the defendants Patrick McGovern and Sheila McGovern appeal from an order of the Supreme Court, Rockland County (Meehan, A. J.), dated December 22, 1992, which granted the plaintiff’s motion for foreclosure.

Ordered that the order is affirmed, with costs.

In 1987, the plaintiff brought an action to foreclose a second mortgage under which the appellants were the mortgagors. In 1984, the parties entered into a stipulation of settlement, which required that the appellants pay the amount due under their mortgage in three separate payments, and the plaintiff clear the appellants’ credit report of any history of the default in mortgage payments. The appellants ceased to make the required payments, contending that the plaintiff had failed to comply with the condition precedent of correcting the credit information. Based upon the appellants’ default, the plaintiff proceeded with the foreclosure. In June 1992 the Supreme Court ordered that the plaintiff comply with the terms of the stipulation of settlement within a 90-day period, and that upon any further default of the appellants, if any, the plaintiff could ask for appointment of a Referee to determine the amount due under the mortgage and for a judgment of foreclosure and sale. The record indicates that the plaintiff complied, but the appellants continued to be in default.

On this appeal, the appellants continue to argue that the plaintiff materially breached the condition precedent, even though the plaintiff has now complied with that condition. In failing to raise the issue or the timeliness of the plaintiff’s [370]*370compliance in the Supreme Court, Rockland County, the appellants failed to preserve the issue for appellate review, and we decline to review it in the exercise of our discretion. In any event, in light of the fact that the plaintiff fulfilled its obligations and the appellants did not, it was not error for the Supreme Court to proceed with the foreclosure action. Rosenblatt, J. P., Miller, Ritter and Santucci, JJ., concur.

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Bluebook (online)

207 A.D.2d 369, 616 N.Y.S.2d 220, 1994 N.Y. App. Div. LEXIS 8211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beneficial-new-york-inc-v-mcgovern-nyappdiv-1994.

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