Federal Land Bank v. Azapian

98 A.D.2d 760, 469 N.Y.S.2d 474, 1983 N.Y. App. Div. LEXIS 21085

Opinion

— In an action to foreclose a mortgage, plaintiff appeals from an order of the Supreme Court, Westchester County (Rubenfeld, J.), entered March 10,1983, which denied its motion for summary judgment against respondents. Order reversed, on the law, without costs or disbursements, motion granted, and matter remitted to Special Term for entry of an appropriate judgment. The defendants-respondents presented no more than conclusory and contradictory data to support their affirmative defense of estoppel and waiver of the due-on-sale clause in the mortgage (see Northeast Small Business Inv. Corp. v Waccabuc Investors, 90 AD2d 538; cf. Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175). We particularly note that respondents admit that (1) an officer of plaintiff bank informed their counsel that “the bank would require [an income and expense statement to be filled in and returned by the purchaser] in order * * * that the mortgage remain”, (2) plaintiff mailed the form on that day to respondents’ counsel, and (3) the form was never returned. Mangano, J. P., O’Connor, Weinstein and Brown, JJ., concur.