Bexin Realty Corp. v. 348 Lucky Corp.

290 A.D.2d 355, 736 N.Y.S.2d 40, 2002 N.Y. App. Div. LEXIS 528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2002
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Lorraine Miller, J.), entered on or about May 22, 2000, which, inter alia, denied and dismissed the petition pursuant to RPAPL 1921 to discharge a wraparound mortgage in the amount of $170,000, unanimously affirmed, without costs.

The IAS court properly excluded petitioner’s proposed amortization table and the testimony of the expert who prepared it, since the preparer had no personal knowledge of the actual payments made on the mortgage and the mortgages it wrapped, but merely created the table “on the assumption” that certain payments had been made. Similarly, the IAS court properly excluded checks, made out to or by parties not related to this proceeding, which would have demonstrated, at most, that the first two mortgages which the subject $170,000 mortgage wrapped had been paid in 1992 and 1995, respectively, which facts respondents conceded. Petitioner was only able to produce two years’ worth of checks, totaling $14,000, made payable to the holder of the $170,000 wraparound mortgage, and even considering all the evidence excluded by the IAS court, at the very least, interest and default interest would have continued to accrue to the holder of the $170,000 wraparound mortgage on the unpaid balance of the first two mortgages which it wrapped until 1992 and 1995, respectively, when those two mortgages were satisfied. Concur — Nardelli, J.P., Tom, Sullivan, Ellerin and Rubin, JJ.