Albany Sav. Bank, FSB v. Seventy-Nine Columbia Street, Inc.

• Decision Date: 28 October 1993
• Docket Number: SEVENTY-NINE
• Citation: 197 A.D.2d 816,603 N.Y.S.2d 72
• Parties: ALBANY SAVINGS BANK FSB, Respondent, v.COLUMBIA STREET INC. et al., Appellants, and Margaret T. McGinn, Respondent. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 72

603 N.Y.S.2d 72

197 A.D.2d 816

ALBANY SAVINGS BANK FSB, Respondent, v. SEVENTY-NINE COLUMBIA STREET INC. et al., Appellants, and Margaret T. McGinn, Respondent.

(And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

Oct. 28, 1993.

Coxeter & Coxeter (M. Randolph Belkin, of counsel), Albany, for appellants.

Cooper, Erving, Savage, Nolan & Heller (Thomas A. Callaghan, of counsel), Albany, for Albany Sav. Bank FSB, respondent.

De Graff, Foy, Holt-Harris & Mealey (James T. Potter, of counsel), Albany, for Margaret T. McGinn, respondent.

Before WEISS, P.J., and MERCURE, CARDONA, MAHONEY and CASEY, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Keegan, J.), entered April 24, 1992 in Albany County, which, inter alia, granted plaintiff's motion for summary judgment.

On January 6, 1989, Arthur McGinn Jr. (hereinafter decedent) and defendant Seventy-Nine Columbia Street Inc. (hereinafter the corporation), a business enterprise controlled by defendants Daniel T. Coxeter and Susan J. Coxeter, took title, as tenants in common, to a vacant lot at 29 Chapel Street in the City of Albany, to use as a parking facility for McGinn's and the Coxeters' respective law offices. On February 17, 1989, decedent, his wife, defendant Margaret T. McGinn (hereinafter McGinn), the Coxeters and the corporation executed a promissory note and decedent and the corporation executed a mortgage to plaintiff evidencing indebtedness of $50,000 and pledging the property as security therefor. On April 26, 1990, decedent conveyed his interest in the property to himself and McGinn. Decedent died on June 27, 1990. Alleging a default in the monthly mortgage payments due January 17, 1991 and February 17, 1991, on March 13, 1991 plaintiff accelerated the obligation and declared the entire balance due. Upon defendants' default in payment thereof, plaintiff subsequently commenced this foreclosure action. In their answer, the corporation and the Coxeters (hereinafter collectively referred to as defendants) asserted counterclaims and cross claims alleging, among other things, that McGinn and plaintiff had conspired to cause a default and foreclosure of the mortgage in order to deprive defendants of the property. In her reply to the cross claim, McGinn asserted a cross claim for partition. Following service of all pleadings, plaintiff moved for an order granting summary judgment of foreclosure and sale and appointing a Referee, and McGinn moved for summary judgment on her cause of action for partition. Supreme Court granted both motions and defendants appeal.

We affirm. Turning first to the grant of summary judgment in favor of plaintiff, we disagree with the claim that plaintiff improperly rejected defendants' March 15, 1991 tender of past-due payments. In view of defendants' undisputed prior receipt of notice of plaintiff's election to accelerate the obligation, plaintiff was not required to accept less than the entire balance due (see, Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 180 N.E. 176; National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, 582 N.Y.S.2d 523, lv. denied 79 N.Y.2d 759, 584 N.Y.S.2d 447, ...