Levine v. Infidelity, Inc.

Appellate Division of the Supreme Court of New York

Levine v. Infidelity, Inc.

285 A.D.2d 629, 728 N.Y.S.2d 670, 2001 N.Y. App. Div. LEXIS 7688

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 30, 2001

StatusPublished

Cited by4 cases

This text of 285 A.D.2d 629 (Levine v. Infidelity, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levine v. Infidelity, Inc., 285 A.D.2d 629, 728 N.Y.S.2d 670, 2001 N.Y. App. Div. LEXIS 7688 (N.Y. Ct. App. 2001).

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Opinion

—In an action to foreclose a mortgage, the defendants Infidelity, Inc., and Richard B. Nye appeal from (1) an order of the Supreme Court, Suffolk County (Dunn, J.), dated February 8, 2000, which granted the plaintiffs motion for leave to reargue their prior motion for summary judgment dismissing the complaint insofar as asserted against them and the plaintiffs cross motion for summary judgment, and, upon reargument, denied their motion for summary judgment and granted the plaintiffs cross motion for summary judgment on the complaint, and (2) an amended order of reference of the same court, dated June 13, 2000, naming a substitute referee to compute.

Ordered that the appeal from the amended order of reference dated June 13, 2000, is dismissed as abandoned, without costs or disbursements; and it is further,

[630]*630Ordered that the order dated February 8, 2000, is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The Supreme Court properly granted the plaintiffs motion for summary judgment upon reargument. Pursuant to paragraphs 7 and 13 of the mortgage, the plaintiff was entitled to declare the defendants Infidelity, Inc., and Richard B. Nye (hereinafter the mortgagors) in default, and to accelerate payment under the note when the mortgagors demolished the existing structure on the property without the plaintiffs consent. It is well settled “that a mortgagor is bound by the terms of his [or her] contract * * * and cannot be relieved from his [or her], default * * * in the absence of waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter’s part” (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183; Ferlazzo v Riley, 278 NY 289, 292). Here, the mortgagors failed to demonstrate any basis for preventing the plaintiff from enforcing the terms of the mortgage.

The appellants’ remaining contentions are without merit. O’Brien, J. P., Friedmann, Feuerstein and Cozier, JJ., concur.

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—In an action to foreclose a mortgage, the defendants Infidelity, Inc., and Richard B. Nye appeal from (1) an order of the Supreme Court, Suffolk County (Dunn, J.), dated February 8, 2000, which granted the plaintiffs motion for leave to reargue their prior motion for summary judgment dismissing the complaint insofar as asserted against them and the plaintiffs cross motion for summary judgment, and, upon reargument, denied their motion for summary judgment and granted the plaintiffs cross motion for summary judgment on the complaint, and (2) an amended order of reference of the same court, dated June 13, 2000, naming a substitute referee to compute.

Ordered that the appeal from the amended order of reference dated June 13, 2000, is dismissed as abandoned, without costs or disbursements; and it is further,

[630]*630Ordered that the order dated February 8, 2000, is affirmed; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The Supreme Court properly granted the plaintiffs motion for summary judgment upon reargument. Pursuant to paragraphs 7 and 13 of the mortgage, the plaintiff was entitled to declare the defendants Infidelity, Inc., and Richard B. Nye (hereinafter the mortgagors) in default, and to accelerate payment under the note when the mortgagors demolished the existing structure on the property without the plaintiffs consent. It is well settled “that a mortgagor is bound by the terms of his [or her] contract * * * and cannot be relieved from his [or her], default * * * in the absence of waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter’s part” (Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183; Ferlazzo v Riley, 278 NY 289, 292). Here, the mortgagors failed to demonstrate any basis for preventing the plaintiff from enforcing the terms of the mortgage.

The appellants’ remaining contentions are without merit. O’Brien, J. P., Friedmann, Feuerstein and Cozier, JJ., concur.

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Bluebook (online)

285 A.D.2d 629, 728 N.Y.S.2d 670, 2001 N.Y. App. Div. LEXIS 7688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levine-v-infidelity-inc-nyappdiv-2001.

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