Orchard Street Associates v. McElone

Appellate Division of the Supreme Court of New York

Orchard Street Associates v. McElone

216 A.D.2d 110, 628 N.Y.S.2d 94, 1995 N.Y. App. Div. LEXIS 6315

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

DecidedJune 15, 1995

StatusPublished

This text of 216 A.D.2d 110 (Orchard Street Associates v. McElone) 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

Orchard Street Associates v. McElone, 216 A.D.2d 110, 628 N.Y.S.2d 94, 1995 N.Y. App. Div. LEXIS 6315 (N.Y. Ct. App. 1995).

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Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about December 20, 1994, which, in an action to recover the unpaid balance on a mortgage, denied plaintiff’s motion for summary judgment, and granted defendant’s cross-motion for summary judgment dismissing the complaint and on its counterclaims declaring the mortgage to be null and void and seeking return of the payments already made thereon, unanimously affirmed, without costs.

The mortgage consolidation and extension agreement in issue was correctly held to be null and void on the ground that, by its terms, it requires the intended mortgagor, defendant, to own the subject premises, which defendant never did. The record shows that the parties intended that defendant would purchase the premises from the owner, a nonparty who was then in default on his mortgages with plaintiff, and that plaintiff would consolidate and extend the original mortgages to defendant. The parties imprudently executed the consolidation agreement before the sale from the nonparty to defendant was finalized or its intent was memorialized in contract and, when negotiations for the sale ultimately failed, defendant rightly refused to make the mortgage payments.

We have considered plaintiff’s other contentions and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Rubin and Mazzarelli, JJ.

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Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about December 20, 1994, which, in an action to recover the unpaid balance on a mortgage, denied plaintiff’s motion for summary judgment, and granted defendant’s cross-motion for summary judgment dismissing the complaint and on its counterclaims declaring the mortgage to be null and void and seeking return of the payments already made thereon, unanimously affirmed, without costs.

The mortgage consolidation and extension agreement in issue was correctly held to be null and void on the ground that, by its terms, it requires the intended mortgagor, defendant, to own the subject premises, which defendant never did. The record shows that the parties intended that defendant would purchase the premises from the owner, a nonparty who was then in default on his mortgages with plaintiff, and that plaintiff would consolidate and extend the original mortgages to defendant. The parties imprudently executed the consolidation agreement before the sale from the nonparty to defendant was finalized or its intent was memorialized in contract and, when negotiations for the sale ultimately failed, defendant rightly refused to make the mortgage payments.

We have considered plaintiff’s other contentions and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Rubin and Mazzarelli, JJ.

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Bluebook (online)

216 A.D.2d 110, 628 N.Y.S.2d 94, 1995 N.Y. App. Div. LEXIS 6315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orchard-street-associates-v-mcelone-nyappdiv-1995.