Columbia Banking Federal Savings & Loan Ass'n v. Tumminelli

122 A.D.2d 550, 504 N.Y.S.2d 940, 1986 N.Y. App. Div. LEXIS 59822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1986
• Status: Published

Opinion

— Order unanimously modified, on the law, and as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred in holding that the mortgagor was not given the right to reinstate the mortgage after default. Paragraph 19 of the mortgage specifically authorizes the mortgagor, in case of a default, to force a discontinuance of any proceeding brought by the mortgagee to enforce the mortgage upon payment of all moneys then owing, together with all reasonable expenses incurred by the mortgagee in attempting to enforce the mortgage. This right of redemption continues even if the mortgagee exercises his rights to an acceleration of payments otherwise provided for in the mortgage agreement. Contrary to the contentions of plaintiff, the mortgagor’s right of redemption provided for under paragraph 19 is in no way diminished or rescinded by paragraph 3 of the amendment to the mortgage.

Defendants in their opposing affidavits allege that they tendered the payment permitted under paragraph 19 of the mortgage prior to entry of the judgment of foreclosure. A question of fact is thus presented as to whether a proper tender was made and wrongfully rejected in this action, which requires a denial of summary judgment.

Special Term correctly found that questions of fact existed relative to the validity of defendants’ counterclaim. In light of the foregoing, however, it no longer is necessary to sever the counterclaim, and the two actions should be tried together. (Appeals from order of Supreme Court, Monroe County, Finnerty, J. — mortgage foreclosure.) Present — Doerr, J. P., Boomer, Green, Pine and Lawton, JJ.