Stevens v. Dogoli

166 A.D.2d 884, 560 N.Y.S.2d 544, 1990 N.Y. App. Div. LEXIS 12110

Opinion

Order unanimously modified on the law and as modified affirmed with costs to defendant and judgment granted, in accordance with the following memorandum: There is no merit to plaintiffs’ contention that the trial court erred in granting summary judgment dismissing their complaint. They sought a declaration that the bond and mortgage given to defendant had been paid in full. The bond and mortgage superseded an earlier purchase contract (77 NY Jur 2d, Mortgages and Deeds of Trust, § 79), which stated an amount for final payment. No final amount was included in the bond and mortgage, although the principal amount, interest rate, term, and monthly payment remained the same. The monthly payments required by both documents were insufficient to pay in full the accrued interest on the debt, and the principal was never reduced by the periodic payments. The language in the bond and mortgage is unambiguous and controlling (see, Cowper Co. v CDC-Troy, Inc., 50 AD2d 1076), and provides that payments shall be applied first to interest. Therefore, the order appealed from is modified to the extent that we declare that plaintiffs are not entitled to a discharge of the mortgage based on payments made to date. (Appeal from order of Supreme Court, Erie County, McGowan, J.— summary judgment.) Present—Dillon, P. J., Boomer, Pine, Lawton and Lowery, JJ.