Bronxville Knolls, Inc. v. Webster Town Center Partnership
| Decision Date | 21 November 1995 |
| Citation | 221 A.D.2d 248,634 N.Y.S.2d 62 |
| Parties | BRONXVILLE KNOLLS, INC., et al., Plaintiffs-Appellants, v. WEBSTER TOWN CENTER PARTNERSHIP, etc., et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
J. Morgulas, for plaintiffs.
Sonnenschein, Nath & Rosenthal (Reid L. Ashinoff and Wendy S. Weingart, of counsel), for defendants.
Before ROSENBERGER, J.P., and ELLERIN, RUBIN, ASCH and NARDELLI, JJ.
Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered August 1, 1994, dismissing plaintiff's complaint, with prejudice, and bringing up for review an order of the same court and Justice entered the same date, which granted defendant's motion pursuant to CPLR 3211(a)(1), unanimously affirmed, without costs.
In order to prevail on a motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1), the documents relied upon must definitively dispose of plaintiff's claim (Juliano v. McEntee, 150 A.D.2d 524, 525, 541 N.Y.S.2d 232; Demas v. 325 W. End Ave. Corp., 127 A.D.2d 476, 477, 511 N.Y.S.2d 621). The IAS court, in dismissing the complaint based upon documentary evidence, properly determined that the explicit and unambiguous, broad non-recourse clause of the integrated mortgage and mortgage note precluded the underlying action by the plaintiffs for a personal judgment as against the defendants on the mortgage note. Said clause clearly established the intention of the parties that the only recourse in connection with the underlying loan was the mortgaged property. The mortgage note expressly incorporates the mortgage and contains no separate or contradictory provision. The two instruments,...
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...§ 2.6(h). Non-recourse provisions are enforceable under New York state law. See, e.g. , Bronxville Knolls, Inc. v. Webster Town Ctr. P'ship , 221 A.D.2d 248, 634 N.Y.S.2d 62 (2d Dep't 1995) (holding that "non-recourse clause of integrated mortgage and mortgage note precluded the underlying ......
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