Southold Savings Bank v. Cutino

118 A.D.2d 555, 499 N.Y.S.2d 169, 1986 N.Y. App. Div. LEXIS 54417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1986
• Status: Published

Opinion

In an action to foreclose a mortgage on real property, the defendant Michael J. Cutino appeals from an order of the Supreme Court, Suffolk County (McCarthy, J.), dated April 26, 1984, which, inter alia, dismissed his defenses of estoppel and waiver.

Order affirmed, with costs.

The uncontroverted facts clearly refute the defendant mortgagor’s assertion that the plaintiff mortgagee waived its right to timely payments of principal and interest and its option to accelerate the entire indebtedness in the event that such payments were not timely made. Moreover, it cannot be said that the mortgagee bank was estopped from requiring strict adherence to the terms of the mortgage or from maintaining this foreclosure action. Although the bank did accommodate the mortgagor by accepting late installment payments for a period of time, the bank repeatedly communicated to the mortgagor in unequivocal terms that his account was in arrears and that it would exercise its option to accelerate unless timely payment was made. Thus, the mortgagor could not have reasonably believed that the mortgagee bank would continue to permit him to remain in arrears and to tender late payments, nor could he have reasonably believed that the bank had waived its right to enforce the acceleration clause and, thereafter, to foreclose (see, Mariash v Bastianich, 88 AD2d 829, appeal dismissed 58 NY2d 823; Dime Sav. Bank v Dooley, 84 AD2d 804; Bowers v Zaimes, 59 AD2d 803; Ford v Waxman, 50 AD2d 585).

We have considered the remaining contentions raised on this appeal and find them to be without merit. Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.