Household Finance Realty Corp. v. Delmerico

202 A.D.2d 636, 609 N.Y.S.2d 310, 1994 N.Y. App. Div. LEXIS 2976

Opinion

—In an action to foreclose a mortgage, the defendant Fleet Finance, Inc., appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), dated May 18, 1992, which denied its motion to vacate the judgment of foreclosure and sale entered upon its default in answering and for leave to serve an answer.

Ordered that the order is affirmed, with costs.

The court properly denied appellant’s motion to vacate the judgment of foreclosure and sale and for leave to serve an answer. The appellant failed to show excusable default and a meritorious defense which would warrant vacating the judgment (see, CPLR 5015 [a] [1]). When served with the summons and complaint, the appellant relied upon the accuracy of the plaintiffs allegations rather than checking its files to determine whether its mortgage had priority over the plaintiffs.

Furthermore, we find that appellant lacks a meritorious defense. The plaintiffs action was based on advances made under a credit-line mortgage. Real Property Law § 281 (2) clearly provides that future advances made under a credit-line mortgage have the same priority of lien as if they had been made at the time the credit-line mortgage was recorded. Under the facts of this case, the attempt to payoff the credit-line mortgage by delivery of a check to the plaintiff by the appellant’s predecessor in interest was not for the full amount owed, and did not constitute "payment” in full of the credit-line mortgage entitling the appellant to a satisfaction piece within the meaning of RPAPL 1921 (1) (cf., Barclay’s Bank v Market St. Mtge. Corp., 187 AD2d 141, 144-145). Balletta, J. P., Ritter, Copertino and Goldstein, JJ., concur.