Dime Savings Bank v. Skrelja

227 A.D.2d 372, 642 N.Y.S.2d 84, 1996 N.Y. App. Div. LEXIS 4907

Opinion

In an action for a judgment of foreclosure and sale of real property, the plaintiff appeals from so much of an order of the Supreme Court, Dutchess County (Hillery, J.), entered June 21, 1995, as denied its motion for summary judgment dismissing the counterclaim of the defendant Marko Skrelja.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the plaintiffs motion for summary judgment dismissing the counterclaim of the defendant Marko Skrelja. The "Forebearance and Deferral Agreement” that Skrelja signed, which stated, in pertinent part, "there are no defenses, offsets or counterclaims of any nature to the Note or the Mortgage” did not waive Skrelja’s right to bring an action in tort for breach of fiduciary duty (see, Davis v Dime Sav. Bank, 158 AD2d 50). "[T]he same conduct which constitutes a breach of a contractual obligation may also constitute the breach of a duty arising out of the contract relationship which is independent of the contract itself’ (Davis v Dime Sav. Bank, supra, at 52; see, Mandelblatt v Devon Stores, 132 AD2d 162). Altman, J. P., Hart, Goldstein and McGinity, JJ., concur.