Hamilton Heights Funding LLC v. 147 W. 129 St. Apt. Inc.

126 A.D.3d 523, 2 N.Y.S.3d 893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2015
• Docket: 14236 116909/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered February 25, 2014, which vacated a prior foreclosure sale and directed that the subject property be re-sold at public foreclosure auction, unanimously affirmed, without costs.

There is no support in the record for appellant’s contention that plaintiff waived appellant’s default at the March 25, 2013 closing by agreeing to extend his time to close beyond March 25, 2013. The parties’ agreement provided that it could not be modified orally, and the record discloses no written agreement to extend appellant’s time to close beyond March 25, 2013 (see General Obligations Law § 15-301; Nassau Beekman LLC v Ann/Nassau Realty LLC, 105 AD3d 33, 39 [1st Dept 2013]). Moreover, even if the agreement permitted oral modification, it would not avail appellant, since there is no evidence that, after appellant defaulted, plaintiff orally agreed to grant him an extension of time to close.

Concur — Mazzarelli, J.P., Sweeny, Renwick, Feinman and Kapnick, JJ.