Home Savings of America, FSB v. Coconut Island Properties, Ltd.

226 A.D.2d 1138, 641 N.Y.S.2d 481, 1996 N.Y. App. Div. LEXIS 5288

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiff’s motion for summary judgment based upon defendant’s default in failing to pay service charges. Paragraph 4 (h) of the mortgage authorizes plaintiff, the mortgagee, to accelerate the mortgage debt upon a default in the performance of any provision of the mortgage note. The note requires the mortgagor, upon demand, to pay a service charge equal to 6% of unpaid principal and interest for any late payment of principal and interest and authorizes the mortgagee to accelerate the debt in the event of a default "in the payment of any sum due and payable hereunder”. The evidence submitted by defendant in opposition to plaintiff’s motion establishes that defendant made late payments in April and May of 1993. The record establishes, however, that plaintiff made a demand for payment of service charges on two occasions, and defendant failed to controvert assertions in the complaint and affidavit in support of the motion that those service charges remained unpaid. Although the complaint does not specifically allege the nonpayment of service charges as the default constituting the basis of this foreclosure action, the court may nevertheless grant summary judgment on an unpleaded cause of action where, as here, the proof supports such a cause of action and defendant has not been misled to its prejudice (see, Torrioni v Unisul, Inc., 214 AD2d 314, 315; Deborah Intl. Beauty v Quality King Distribs., 175 AD2d 791, 793). (Appeal from Order of Supreme Court, Kings County, Aronin, J.— Summary Judgment.) Present—Pine, J. P., Fallon, Callahan, Balio and Davis, JJ.