Grossman v. Pendant Realty Corp.

221 A.D.2d 240, 634 N.Y.S.2d 61, 1995 N.Y. App. Div. LEXIS 12104

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered March 14,1995, which denied plaintiffs’ motion for a direction that defendant E. 103rd St. & Lex Ave. Realty Corp. pay plaintiffs $114,345.10 without requiring plaintiffs to deliver a satisfaction of the mortgage, and denied defendant’s request for sanctions against plaintiffs, unanimously affirmed, with costs to defendant.

At an earlier stage of the litigation between the parties, this Court modified an order of Supreme Court, to confirm in its entirety a Referee’s report so as to direct plaintiffs to issue a document discharging and cancelling defendant’s mortgage upon payment, by defendant, of the amount determined to be due plaintiffs on the mortgage (200 AD2d 521, lv denied 83 NY2d 760). Accordingly, we affirm the order now appealed from, which denied plaintiffs’ motion for an order directing defendant to pay plaintiffs the amount due without requiring plaintiffs to issue a document discharging and cancelling the mortgage. Plaintiffs are not entitled to statutory interest on the amount which must be paid by defendant because recovery of interest in an equitable action is discretionary (CPLR 5001 [a]) and the IAS Court properly found that plaintiffs’ conduct, essentially a rejection of a valid tender of payment, justified denial of interest herein. While plaintiffs’ legal arguments in the IAS Court and on this appeal are not meritorious, we do not find them to be frivolous as would warrant the imposition of sanctions under 22 NYCRR part 130. Concur—Murphy, P. J., Sullivan, Wallach, Ross and Williams, JJ.