EMC Mortgage Corp. v. Gross

289 A.D.2d 438, 735 N.Y.S.2d 581, 2001 N.Y. App. Div. LEXIS 12971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2001
• Status: Published

Opinion

In an action, inter alia, to compel and direct the defendants to execute a modification agreement to their mortgage agreement, the defendants appeal from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated July 10, 2000, as granted the plaintiff’s motion for summary judgment and denied the defendants’ cross motion for summary judgment.

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

Contrary to the defendants’ contentions, the Supreme Court properly granted the plaintiffs motion for summary judgment compelling execution of the modification agreement. Upon the plaintiff making out a prima facie case for summary judgment, the defendants failed to establish or even raise a triable issue as to whether the plaintiff breached the modification commitment letter when it commenced a foreclosure action in 1996. Accordingly, there is no bar to specific performance of the modification commitment letter (see, Kraitenberger v Aloow Realty Corp., 172 AD2d 647; cf., Madison Invs. v Cohoes Assocs., 176 AD2d 1021; Contro v White, 176 AD2d 1052).

The defendants’ remaining contentions are without merit. Altman, J. P., S. Miller, Crane and Prudenti, JJ., concur.