Berkeley Federal Bank & Trust FSB v. 229 E. 53rd Street Associates

232 A.D.2d 315, 648 N.Y.S.2d 918, 1996 N.Y. App. Div. LEXIS 10557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 14, 1995, which granted plaintiff’s motion for summary judgment of foreclosure and appointed a Referee to compute the mortgage debt, unanimously affirmed, with costs.

The record belies defendants-appellants’ contention that plaintiff’s predecessor orally waived the right to accelerate the mortgage debt and foreclose, precluding their reliance on Nassau Trust Co. v Montrose Concrete Prods. Corp. (56 NY2d 175). Absent here is that " 'threshold of believability’ ” of oral waiver, necessary for a mortgagor’s reliance on the Nassau Trust case (Citibank v Nyland [CF8] Ltd., 878 F2d 620, 623, quoting New York State Urban Dev. Corp. v Marcus Garvey Brownstone Houses, 98 AD2d 767, 771). Further, there is insufficient proof of payment of the mortgage indebtedness necessary to bring the mortgage current and to prevent foreclosure at the time of commencement of this action.

We have considered appellants’ remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Ross, Nardelli and Mazzarelli, JJ.