Interaudi Bank v. Moorgate Investments Ltd.

2016 NY Slip Op 8442, 145 A.D.3d 549, 44 N.Y.S.3d 35

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 2016
• Docket: 2470 850280/15
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about April 14, 2016, which denied plaintiff’s motion for summary judgment on its claim for foreclosure and sale of certain commercial properties, unanimously reversed, on the law, without costs, and the motion granted.

The parties’ forbearance agreement expressly conditioned plaintiff’s extension of the loan maturity date on plaintiff’s receipt of $1,000,000 toward reduction in the principal from the proceeds of certain art sales by the loan payment guarantor at two November 2015 auctions (see Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]). This express condition rendered time of the essence (Baiting Hollow Acquisitions v Estates of Baiting Hollow, 266 AD2d 490 [2d Dept 1999]) and had to be complied with literally (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]). Because defendants failed to comply with the terms of the condition, the loan maturity date was not extended, and plaintiff is entitled as a matter of law to foreclose on the mortgage and note.

Concur—Acosta, J.R, Andrias, Moskowitz, Gische and Webber, JJ.