Danielowich v. Pbl Development

• Decision Date: 11 March 2002
• Docket Number: 01-02673,2
• Parties: Frank Danielowich, respondent, v PBL Development, appellant. 2001-02673 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued -
• Court: New York Supreme Court — Appellate Division

Frank Danielowich, respondent v PBL Development, appellant

2001-02673

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued - January 10, 2002

Decided on March 11, 2002

O'Reilly, Marsh & Corteselli, P.C., Garden City, N.Y. (Arthur T. Walsh of counsel), for appellant.

Smith, Finkelstein, Lundberg, Isler and Yakaboski, Riverhead, N.Y. (Francis J. Yakaboski of counsel), for respondent.

DECISION & ORDER

ANITA R. FLORIO, J.P.

NANCY E. SMITH

LEO F. McGINITY

STEPHEN G. CRANE, JJ.

In an action, inter alia, to foreclose a mortgage, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Seidell, J.), dated February 16, 2001, which, among other things, is in favor of the plaintiff and against it in the principal sum of $433,791.17, confirmed a Referee's report, and foreclosed the mortgage.

ORDERED that the order and judgment is modified, as a matter of discretion, by (1) deleting from the fifth decretal paragraph thereof the phrase "together with interest thereon from the date of the said report, the 22nd day of December, 1999", and substituting therefor "together with interest thereon at the rate of 16% per annum from the date of the Referee's report, December 22, 1999, through May 16, 2000, and thereafter at the rate of 9% per annum", and (2) deleting from the third numbered subparagraph of the sixth decretal paragraph thereof the phrase "together with legal interest thereon from the 22nd day of December, 1999", and substituting therefor the phrase "together with interest thereon at the rate of 16% per annum from the date of the Referee's report, December 22, 1999, through May 16, 2000, and thereafter at the rate of 9% per annum"; as so modified, the order and judgment is affirmed, without costs or disbursements.

The Supreme Court correctly confirmed the Referee's determination that the terms of the bond and mortgage at issue were not inconsistent, and that the respondent was entitled to collect interest on the unpaid balance at the rate of 16% per annum. There is no dispute that the appellant defaulted on the bond and mortgage. Although the default interest rate of 16% per annum is found only in the mortgage, the bond provides "that all of the covenants, conditions and agreements contained in said mortgage are hereby made part of this instrument". The default interest rate found in the mortgage is incorporated by reference into the bond and, therefore, the respondent was entitled to...