Federal National Mortgage Ass'n v. McAuliffe

226 A.D.2d 497, 641 N.Y.S.2d 115, 1996 N.Y. App. Div. LEXIS 4395

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1996
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Russell McAuliffe, Jr., and Diane McAuliffe appeal from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated December 14,1994, which, inter alia, granted the plaintiff’s motion for summary judgment.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action after the appellants defaulted on payments due on a mortgage note. The appellants contend that a promissory note for the amount of the mortgage note, which was signed by the appellant Russell McAuliffe, Jr., and offered to the plaintiffs servicing agent prior to commencement of the action, satisfied their mortgage debt. It is well settled, however, that a subsequent note does not discharge the original indebtedness in the absence of an express agreement between the parties (see, Home & City Sav. Bank v Sperrazza, 204 AD2d 836; Home & City Sav. Bank v Bilinski, 177 AD2d 73; Bank of N. Y. v Cerasaro, 98 AD2d 902; Skaneateles Sav. Bank v Herold, 50 AD2d 85, affd 40 NY2d 999). The appellants failed to offer any evidence that the plaintiff agreed to accept the promissory note as payment of the mortgage debt. Since the appellants presented no valid defense to the foreclosure action, the Supreme Court properly granted summary judgment to the plaintiff. O’Brien, J. P., Ritter, Hart and Goldstein, JJ., concur.