Greater New York Savings Bank v. 2120 Realty, Inc.

202 A.D.2d 248, 608 N.Y.S.2d 463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (William J. Davis, J.), entered on or about January 8, 1993, which inter alia granted plaintiff’s motion for summary and related relief on the foreclosure of a first mortgage given on certain property located at 325-327 West 51st Street, New York, and dismissed defendants’ counterclaims, unanimously affirmed, with costs.

Plaintiff established a prima facie case of entitlement to foreclosure of the property secured by a 1988 mortgage and recovery of any deficiency from the guarantors based on its production of relevant documents and defendants’ undisputed default on the obligation to make payments of principal and interest (Travelers Ins. Co. v 633 Third Assocs., 194 AD2d 418). Defendants’ unsupported allegations that plaintiff acted wrongfully in connection with the purported sale of the property to a third party, are insufficient to warrant denial of summary judgment to plaintiff (see, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967).

Further, there is no support in the record for defendants’ assertion that their counterclaims should not have been dismissed with prejudice, but instead severed, since the right to assert such claims was waived pursuant to the 1988 note (see, Sterling Natl. Bank & Trust Co. v Giannetti, 53 AD2d 533). Moreover, none of the counterclaims sounding in breach of duty to deal in good faith, breach of implied consent and breach of contract could overcome the waiver provision in the absence of fraud which has not been made out (see, Sterling Natl. Bank & Trust Co. v Giannetti, supra). Concur — Sullivan, J. P., Carro, Ellerin, Wallach and Nardelli, JJ.