Hudson City Sav. Inst. v. Burton
| Decision Date | 27 May 1982 |
| Citation | 451 N.Y.S.2d 855,88 A.D.2d 728 |
| Parties | HUDSON CITY SAVINGS INSTITUTION, Respondent, v. Joseph J. BURTON, Defendant, and Anne E. Burton, Appellant. |
| Court | New York Supreme Court — Appellate Division |
David V. Needleman, Chatham, for appellant.
Connor, Curran, Connor, Flint & Schram, Hudson (Marc I. Gold, Hudson, of counsel) for respondent.
Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and WEISS, JJ.
Appeal from an order of the County Court of Columbia County, entered December 2, 1980, which, inter alia, granted plaintiff bank's motion for summary judgment for foreclosure of a mortgage.
Since relief in the form of restitution would be available if defendant Anne E. Burton (defendant) were to succeed on this appeal, neither the failure to post an undertaking to obtain an automatic stay (CPLR 5519, subd. par. 6) nor the sale of the foreclosed premises renders the appeal moot. Turning to the merits, we find that plaintiff was entitled to summary judgment and, therefore, the order must be affirmed.
Defendant contends that her allegations concerning her six affirmative defenses created questions of fact precluding summary judgment. There is no merit to this contention. With respect to the defense of tender, it is the general rule that a mortgagor's tender of the entire amount necessary to expunge all default prior to the mortgagee's exercise of the acceleration option is a complete defense (see Sherwood v. Greene, 41 A.D.2d 881, 342 N.Y.S.2d 990). Defendant's only tender occurred on or about July 25, 1980 and since it did not include the July, 1980 payment, which was then in default, it was not a tender of the entire amount then due.
The acceleration clause here is in statutory form (Real Property Law, § 258, schedule N, par. 4) under which no notice of default or demand for payment is required as a condition precedent to declaring the entire amount due and commencing a foreclosure action (Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 475, 180 N.E. 176). In the absence of waiver or estoppel, or bad faith, fraud or oppressive or unconscionable conduct on the part of plaintiff mortgagee, plaintiff had the right to exercise its option anytime after the expiration of the grace period (Ferlazzo v. Riley, 278 N.Y. 289, 292, 16 N.E.2d 286). Defendant's allegations do not indicate any bad faith, fraud, or oppressive or unconscionable conduct by plaintiff. With respect to waiver or estoppel, even...
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Stanton v. RICH BAKER BERMAN & CO., PA
...percent of the $42,000 due at closing, was not a valid tender which would preclude acceleration. See Hudson City Sav. Inst. v. Burton, 88 A.D.2d 728, 451 N.Y.S.2d 855, 856 (App.Div.1982) (right to exercise acceleration option was not undermined by attempted tender of less than the amount du......
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...of principal and interest (see Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 842 N.Y.S.2d 1 [1st Dep't 2007]; Hudson City Sav. Inst. v. Burton, 88 A.D.2d 728, 451 N.Y.S.2d 855 [3d Dept. 1982]; Federal Home Loan Mortg. Corp. v. Drofan Realty Corp., supra; Federal Home Loan Mtg. Corp. v. 141st Stre......
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...inasmuch as this Court's determination may impact defendants' right to restitution under CPLR 5523 (see Hudson City Sav. Inst. v. Burton, 88 A.D.2d 728, 728, 451 N.Y.S.2d 855 [1982] ). Turning to the merits, in an action to foreclose on a mortgage, a plaintiff satisfies its summary judgment......