Tri-Land Properties, Inc. v. 115 West 28th Street Corp.

269 A.D.2d 264, 703 N.Y.S.2d 120, 2000 N.Y. App. Div. LEXIS 1561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered December 11, 1998, and judgment entered thereon on December 17, 1998, confirming the Referee’s report of sale, determining the fair and reasonable market value of the premises as of December 11, 1997, and awarding a deficiency judgment in the sum of $858,395.36, in this mortgage foreclosure action brought against defendants-appellants 115 West 28th Street Corp., as mortgagor, and New York Foundation for Senior Citizens Guardian Services, Inc. as Guardian for Eleanor Dube, as guarantor, unanimously affirmed, without costs.

It is clear that the guaranty executed by Dube on the promissory note, which defined holders as, inter alia, any transferees, was not a special guarantee, since it permitted any holder to bring suit against the guarantor. Therefore, Dube’s intended obligations have not been enlarged (cf., Fehr Bros. v Scheinman, 121 AD2d 13, 15-16).

Furthermore, in view of overwhelming support in the appraisal for a market value of $680,000 on the date of auction, the conclusory documents submitted by defendants purporting to establish a higher value did not create a question of fact requiring a hearing (see, Golden City Commercial Bank v Hawk Props. Corp., 240 AD2d 218). Finally, under the circumstances, the deficiency judgment was properly entered without resolution of the previously severed counterclaims. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Wallach and Rubin, JJ.