Daniel Perla Associates, L.P. v. ZLD Realty, L. L. C.

277 A.D.2d 115, 716 N.Y.S.2d 298, 2000 N.Y. App. Div. LEXIS 12078

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered July 13, 1999, which, in an action to foreclose a mortgage, inter alia, directed that plaintiff mortgagee accept the sum of $145,665 in full satisfaction of the mortgage, and bringing up for review a prior order, entered February 10, 1999, which, insofar'as challenged, granted defendant mortgagor’s motion for summary judgment dismissing the complaint, determined that defendant is entitled to certain reductions in the principal of the mortgage, and directed a hearing to determine the amounts of those reductions and otherwise compute the outstanding balance on the mortgage, unanimously affirmed, with costs.

The motion court properly found that plaintiff had, in bad faith, breached its obligations under the contract. An action in foreclosure is an equitable action, and the equities herein compel the conclusion that plaintiff was not entitled to reject tender of payment, then use that rejection as a basis for holding defendants in default (see, Futterman v Calce, 226 AD2d 306, 307). Concur — Nardelli, J. P., Williams, Ellerin, Lerner and Rubin, JJ.