CrossLand Savings, FSB v. Loguidice-Chatwal Real Estate Investment Co.

171 A.D.2d 457

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on May 23, 1990, which, inter alia, granted the motion by plaintiff CrossLand Savings, FSB ("CrossLand”) pursuant to CPLR 3212 for summary judgment to the extent of granting foreclosure on mortgage liens against the property located at 118-122 West 23 Street, New York (the "subject property”) and which denied the affirmative defenses and dismissed all of the counterclaims asserted in the Verified Answer of defendants Loguidice-Chatwal Real Estate Investment Co., and Frank M. Loguidice ("the Loguidice defendants”) except the third counterclaim, which was severed, unanimously affirmed, with costs.

Upon examination of the record, we find that the IAS court properly granted plaintiff CrossLand’s motion for summary judgment to the extent of granting foreclosure on the subject property and properly excluded parole and hearsay evidence submitted by the Loguidice defendants in opposition thereto. Here, the defendants’ parole evidence, in the form of uncorroborated affidavits purporting to establish oral promises by plaintiff CrossLand of permanent financing and to forbear in foreclosing on the defaulted mortgages, was directly contradicted by the unambiguous terms of the parties’ mortgage documents which specifically precluded any oral modification, waiver or termination of any rights or remedies provided therein. (New York State Mtge. Loan Enforcement & Admin. Corp. v Coney Is. Site Five Houses, 109 AD2d 311, 318; New York State Urban Dev. Corp. v Garvey Brownstone Houses, 98 AD2d 767, 771.)

Similarly, we find that the IAS court properly rejected defendants’ conclusory and unsupported claims of bad faith, fraud, mutual mistake and estoppel as negated by the express terms of the parties’ unambiguous written agreements. (Long Is. R. R. Co. v Northville Indus. Corp., 41 NY2d 455, 461; West, Weir & Bartel v Carter Paint Co., 25 NY2d 535, 540.)

We have considered the defendants’ remaining contentions, and find them to be without merit. Concur — Sullivan, J. P., Milonas, Rosenberger, Asch and Smith, JJ.