Phybell Development Corp. v. Keybank National Ass'n

32 A.D.3d 1360, 821 N.Y.S.2d 508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2006
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J), entered August 23, 2005. The order granted defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action alleging that defendant unreasonably delayed plaintiffs loan application and that, as a result of that delay, plaintiff was forced to accept a higher interest rate than the interest rate proposed by defendant at the time of the application. Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff does not address in its brief the propriety of the dismissal of its cause of action for deceptive business practices and thus has abandoned any issue with respect to that cause of action (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). With respect to the remaining causes of action, we agree with the court that they are barred by the merger/disclaimer language in the December 1998 commitment letter and the final loan agreement (see D’Agostino Gen. Contrs. v Steve Gen. Contr., 267 AD2d 1059 [1999]). We note in addition that there is no evidence in the record that defendant failed to negotiate in good faith to consummate the transaction (see 180 Water St. Assoc. v Lehman Bros. Holdings, 7 AD3d 316, 317 [2004]). Present — Kehoe, J.P., Gorski, Martoche, Smith and Pine, JJ.