Blueberry Investors Co. v. Ilana Realty Inc.

• Decision Date: 11 June 1992
• Citation: 184 A.D.2d 906,585 N.Y.S.2d 564
• Parties: BLUEBERRY INVESTORS COMPANY, Respondent, v. ILANA REALTY INC. et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 564

585 N.Y.S.2d 564

184 A.D.2d 906

BLUEBERRY INVESTORS COMPANY, Respondent, v.ILANA REALTY INC. et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Third Department.

June 11, 1992.

Stanley Weiner, Spring Valley, for appellants.

Greenberg, Wanderman & Fromson(Carl L. Wanderman, of counsel), Spring Valley, for respondent.

Before MIKOLL, J.P., and YESAWICH, LEVINE, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a counter judgment of the Supreme Court(Lefkowitz, J.), entered March 15, 1991 in Rockland County, which, inter alia, granted plaintiff's motion to confirm a Referee's report of sale in an action to foreclose a mortgage.

This action involves the foreclosure of three mortgage notes executed by defendantIlana Realty Inc. in favor of plaintiff.The first of these mortgages was made to secure a loan to Ilana Realty for $1,200,000.Payment and performance of this mortgage was guaranteed by defendants202 Developers Inc., Ilana Kwilecki, David Kwilecki and Danny Kwilecki.The note was also secured by a purchase-money mortgage on a riverfront property in the Town of Haverstraw, Rockland County.The second of the subject mortgages was a collateral mortgage executed in plaintiff's favor on January 29, 1988 to secure the same $1,200,000 debt.This note was secured by different property in the same town.On September 30, 1988, Ilana Realty and Ilana Kwilecki executed the third of the subject mortgages in plaintiff's favor for $150,000.This mortgage was secured by four additional parcels of property and guaranteed by David Kwilecki and Danny Kwilecki.The three mortgages were all fully due and payable on July 29, 1989, the first two having been previously extended and modified.

The July 29, 1989 due date came and went and the three mortgages were in default.Nevertheless, by purchase and sale contract dated January 17, 1990, Ilana Realty agreed to sell the parcel secured by the first of the mortgages to Short Clove Associates, Inc. for $2,500,000, the closing to take place on March 17, 1990.Ilana Realty notified plaintiff of this contract.Approximately one month later plaintiff commenced this action and filed a notice of pendency.Following joinder of issue, the parties cross-moved for summary judgment.Supreme Court ultimately decided, inter alia, to grant plaintiff's motion for summary judgment and for the appointment of a Referee to compute the amount defendants owed to plaintiff.Defendants' attempt to stay the foreclosure action was unsuccessful and the Referee appointed by the court duly rendered a report computing the amount due to plaintiff.Plaintiff's motion for confirmation of the Referee's report, a judgment of foreclosure and appointment of a Referee for the sale of the original parcel secured by the first mortgage were granted by Supreme Court.Defendants now appeal from the counter judgment entered on this decision.

Initially, defendants contend that Supreme Court improperly denied their motion following joinder of issue for leave to amend their answer (see, CPLR 3025[b] to include three affirmative defenses.Defendants assert that their delay in requesting leave to amend was not a lengthy one and leave should have been freely given.In denying defendants' request, however, Supreme Court examined the proposed affirmative defenses (see, Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book7B, CPLR C3025:11, at 360-361) and found that they were "insufficient to defeat plaintiff's action".Because our review of the proposed amendments comports with that of Supreme Court, we must concur in that court's discretionary denial of defendants' motion (see, Brown v. Samalin & Bock, 155 A.D.2d 407, 408, 547 N.Y.S.2d 80).

In their first proposed affirmative defense, defendants submitted nothing more than conclusory allegations that plaintiff had unclean hands due to its alleged tortious interference with defendants' contract with Short Clove.Defendants' allegations regarding supposed dealings between these entities are far too...