Valley National Bank v. Gurba

2017 NY Slip Op 2601, 149 A.D.3d 412, 51 N.Y.S.3d 65

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 2017
• Docket: 3624 102457/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 15, 2014, which, after an inquest, dismissed defendants’ affirmative defense of failure to mitigate and directed entry of judgment in plaintiffs favor in the total amount of $4,905,185.26, unanimously affirmed, without costs.

The motion court correctly dismissed the defense of failure to mitigate, since plaintiff had no duty to sell the nonperishable collateral at any particular time, regardless of the demand of defendants (see First Intl. Bank of Israel v Blankstein & Son, 59 NY2d 436, 447 [1983]). The court also correctly allowed the calculation of the debt based on default interest, where plaintiff had the clear contractual right to impose such interest once a default occurred.

The fraud defenses were dismissed in another order not appealed from, and, in any event, the defenses were correctly dismissed, as there was no writing that met the requirements of 12 USC § 1823 (e) (1) (see Aurora Loan Servs. LLC v Sadek, 809 F Supp 2d 235, 241 [SD NY 2011]).

Concur — Friedman, J.P., Sweeny, Moskowitz, Gische and Kapnick, JJ.