Citibank, N.A. v. Smith

Appellate Division of the Supreme Court of New York

Citibank, N.A. v. Smith

245 A.D.2d 148, 666 N.Y.S.2d 153, 1997 N.Y. App. Div. LEXIS 13037

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

DecidedDecember 16, 1997

StatusPublished

This text of 245 A.D.2d 148 (Citibank, N.A. v. Smith) 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

Citibank, N.A. v. Smith, 245 A.D.2d 148, 666 N.Y.S.2d 153, 1997 N.Y. App. Div. LEXIS 13037 (N.Y. Ct. App. 1997).

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Opinion

—Judgment, Supreme Court, New York County (Lewis Friedman, J.), entered August 14, 1996, awarding plaintiff the principal sum of $1,444,312.66, and bringing up for review an order, same court and Justice, entered July 30, 1996, which granted plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, with costs. The appeal from the order is unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

We agree with the motion court’s finding that the repeated provisions in the notes and corresporidence barring oral waiver, both in general and particularly with respect to plaintiff’s right to demand payment of the notes at any time, preclude defendants’ claim of justifiable reliance with respect to their waiver and estoppel defenses (see, Bank of N. Y. v Murphy, 230 AD2d 607, 608, lv dismissed 89 NY2d 1030). Plaintiff was entitled to enforce the notes regardless of the outcome of the foreclosure sale of the collateral (UCC 9-501 [1]) and, in any event, the uncertainties in the future valuation of the collateral did not warrant delaying plaintiff’s right to pursue a more expeditious remedy. We note that any surplus recovered, after valuation of the stock in the bankruptcy court, will be returned to defendant. We have considered defendants’ other arguments and find them to be without merit. Concur—Wallach, J. P., Rubin, Williams, Tom and Andrias, JJ.

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—Judgment, Supreme Court, New York County (Lewis Friedman, J.), entered August 14, 1996, awarding plaintiff the principal sum of $1,444,312.66, and bringing up for review an order, same court and Justice, entered July 30, 1996, which granted plaintiff’s motion for summary judgment in lieu of complaint, unanimously affirmed, with costs. The appeal from the order is unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

We agree with the motion court’s finding that the repeated provisions in the notes and corresporidence barring oral waiver, both in general and particularly with respect to plaintiff’s right to demand payment of the notes at any time, preclude defendants’ claim of justifiable reliance with respect to their waiver and estoppel defenses (see, Bank of N. Y. v Murphy, 230 AD2d 607, 608, lv dismissed 89 NY2d 1030). Plaintiff was entitled to enforce the notes regardless of the outcome of the foreclosure sale of the collateral (UCC 9-501 [1]) and, in any event, the uncertainties in the future valuation of the collateral did not warrant delaying plaintiff’s right to pursue a more expeditious remedy. We note that any surplus recovered, after valuation of the stock in the bankruptcy court, will be returned to defendant. We have considered defendants’ other arguments and find them to be without merit. Concur—Wallach, J. P., Rubin, Williams, Tom and Andrias, JJ.

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Bluebook (online)

245 A.D.2d 148, 666 N.Y.S.2d 153, 1997 N.Y. App. Div. LEXIS 13037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citibank-na-v-smith-nyappdiv-1997.

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