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Bronxville Knolls v. Webster Town Center

Appellate Division of the Supreme Court of New York, First Department
Nov 21, 1995
221 A.D.2d 248 (N.Y. App. Div. 1995)

Summary

holding that "non-recourse clause of integrated mortgage and mortgage note precluded the underlying action by the plaintiffs for a personal judgment as against the defendants" because "the only recourse in connection with the underlying loan was the mortgaged property"

Summary of this case from Taberna Preferred Funding IV, Ltd. v. Opportunities II Ltd. (In re Taberna Preferred Funding IV, Ltd.)

Opinion

November 21, 1995

Appeal from the Supreme Court, New York County (Ira Gammerman, J.).


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; Demas v. 325 W. End Ave. Corp., 127 A.D.2d 476, 477). 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, which were negotiated and executed as part of an integrated agreement for the purchase of real property, should be read and considered together as part of the same transaction ( Stern v Itkin Bros., 87 Misc.2d 538 [Sup Ct, N Y County, Fein, J.]).

Plaintiffs' reliance upon Pessin v Persaud ( 92 A.D.2d 490), is misplaced. There, unlike the case at bar, the mortgage did not contain any language expressly precluding a personal judgment, did not contain any language directing the mortgagee to look to the security of the mortgaged property in the event of a default, and did not contain any language similar to that herein, that "nothing contained herein or in any other instrument shall obligate the mortgagor further than to bind its right, title and interest in the mortgaged premises".

Concur — Rosenberger, J.P., Ellerin, Rubin, Asch and Nardelli, JJ.


Summaries of

Bronxville Knolls v. Webster Town Center

Appellate Division of the Supreme Court of New York, First Department
Nov 21, 1995
221 A.D.2d 248 (N.Y. App. Div. 1995)

holding that "non-recourse clause of integrated mortgage and mortgage note precluded the underlying action by the plaintiffs for a personal judgment as against the defendants" because "the only recourse in connection with the underlying loan was the mortgaged property"

Summary of this case from Taberna Preferred Funding IV, Ltd. v. Opportunities II Ltd. (In re Taberna Preferred Funding IV, Ltd.)

In Bronxville Knolls v Webster Town Ctr. Partnership (221 AD2d 248), the Appellate Division, First Department, found that an integrated mortgage and note, which unambiguously made the property itself the plaintiffs' sole recourse, constituted "documentary evidence."

Summary of this case from Fontanetta v. John Doe
Case details for

Bronxville Knolls v. Webster Town Center

Case Details

Full title:BRONXVILLE KNOLLS, INC., et al., Appellants, v. WEBSTER TOWN CENTER…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 21, 1995

Citations

221 A.D.2d 248 (N.Y. App. Div. 1995)
634 N.Y.S.2d 62

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