Kane-Miller Corp. v. Salkin

226 A.D.2d 1028, 641 N.Y.S.2d 446, 1996 N.Y. App. Div. LEXIS 4537
Appellate Division of the Supreme Court of the State of New York·Decided April 25, 1996·Published·Cited by 3 cases

Opinion

—Crew III, J.

Appeals (transferred to this Court by order of the Appellate Division, Second Department) (1) from an order of the Supreme Court (Hickman, J.), entered April 7, 1994 in Putnam County, which determined certain defendants’ percentage of deficiency in a mortgage foreclosure action, (2) from an order of said court, entered July 13, 1994 in Putnam County, which found the value of the real property and calculated the amount of the deficiency to be entered against defendants Paul Salkin and Nesrin Bingol Salkin, and (3) from the judgment entered thereon.

In October 1985, defendants Olin L. West, Katherine Kane, Joseph R. Solanto and Diane H. Solanto purchased a tract of commercial real estate located in the Town of Patterson, Putnam County. On April 18, 1990, West and Kane jointly and severally executed a mortgage note in favor of plaintiff in the amount of $336,500, which was secured by a mortgage on the subject property. The Solantos executed a similar note and mortgage in plaintiff’s favor on February 1, 1991, with the mortgage note specifically providing that it "[was] being executed to evidence the joint and several obligation of the makers to pay the same $336,500.00 indebtedness owed to [plaintiff] by [West and Kane], dated April 18,1990. All parties are jointly and severally liable for a single total indebtedness of $336,500.”

The two mortgages were then consolidated and, by indenture / deed dated February 1, 1991, West and Kane conveyed their interest in the property to defendants Paul [1029]*1029Salkin and Nesrin Bingol Salkin (hereinafter collectively referred to as defendants). According to the terms of the deed, the conveyance was made and accepted subject to the mortgage executed by West and Kane and the mortgage executed by the Solantos, each securing the principal sum of $336,500, as consolidated. The deed also contained an "assumption clause” which provided that: "[Defendants] hereby assume[ ] and agree[ ] to indemnify [West and Kane] from and against one half of the unpaid principal balance of the West-Kane [f|irst [mjortgage which amount so assumed by [defendants] is the amount of $168,250.00, plus interest * * * and [defendants] hereby execute! ] and acknowledge! ] this deed for the purpose of assuming the obligations of [West and Kane] pursuant to the [consolidated [flirst [mjortgage, pursuant to its terms and conditions.”

The responsible parties thereafter ceased making payments, and plaintiff subsequently commenced a foreclosure action against West, Kane, the Solantos and defendants. Ultimately, a judgment of foreclosure was entered and plaintiff purchased the property at a foreclosure sale for $225,000.

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Kane-Miller Corp. v. Salkin, 226 A.D.2d 1028, 641 N.Y.S.2d 446, 1996 N.Y. App. Div. LEXIS 4537 (N.Y. Ct. App. 1996).

226 A.D.2d 1028 (Kane-Miller Corp. v. Salkin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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