Gratton v. Dido Realty Co., Inc.
| Decision Date | 05 June 1978 |
| Citation | 63 A.D.2d 959,405 N.Y.S.2d 1001 |
| Parties | Joseph S. GRATTON, as Treasurer of First Mortgage Investors, Respondent, v. DIDO REALTY CO., INC., et al., Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Victor Gartenstein, New York City (Joseph A. D'Addario and Sanford Silver, New York City, of counsel), for appellants.
Keane & Butler, New York City (Raymond Fitzgerald and Lon S. Bannett, New York City, of counsel), for respondent.
Before DAMIANI, J. P., and SUOZZI, RABIN and HAWKINS, JJ.
MEMORANDUM BY THE COURT.
In a mortgage foreclosure action, the appeals are from two judgments of the Supreme Court, Queens County, (1) the first of which was entered March 14, 1977, and, inter alia, appointed a Referee to ascertain and compute the amount due the plaintiff on the note and mortgage and (2) the second of which was entered on July 28, 1977 and, inter alia, directed a sale at auction of the property in question.
Judgments affirmed, with one bill of costs.
The conceded existence of cost over-runs amounting to approximately $139,000 is relevant on the issue of the mortgagor's conduct. Under these circumstances, it was not oppressive or unconscionable for the mortgagee to refuse to fund another advance until the builder paid the interest due and furnished lien waivers by the contractors. Both calculations of the effective rate of interest by the appellants' expert, Mr. Schiff, are inapplicable, as the builder was not charged with interest on the unadvanced funds but only with interest on the funds as they were made available to it (cf. Band Realty Co. v. North Brewster, Inc., 37 N.Y.2d 460, 462-463, 373 N.Y.S.2d 97, 98, 335 N.E.2d 316, 317). We have considered the appellants' claim of error in the Trial Judge's granting of the plaintiff's motion to amend the amended complaint so as to allege additional defaults for nonpayment of interest in the three months preceding the commencement of this action.
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Romer v. Hobart & William Smith Colleges, 93-CV-6231L.
...New York, 573 F.Supp. 1433, 1440 (S.D.N.Y. 1983); Gratton v. Dido Realty Co., 89 Misc.2d 401, 391 N.Y.S.2d 954, aff'd, 63 A.D.2d 959, 405 N.Y.S.2d 1001 (2d Dep't 1978). To establish this element, plaintiff would have to show that defendants knew that they were not going to follow the proced......
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...thereon, he or she changed position to his or her prejudice (Gratton v. Dido Realty Co., 89 Misc.2d 401, 391 N.Y.S.2d 954, affd. 63 A.D.2d 959, 405 N.Y.S.2d 1001; see also, Buffum v. Pete Barceloux Co., 289 U.S. 227, 53 S.Ct. 539, 77 L.Ed. 1140; Werking v. Amity Estates, 2 N.Y.2d 43, 155 N.......
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