From Casetext: Smarter Legal Research

FGH Realty Credit Corp. v. VRD Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Sep 9, 1996
231 A.D.2d 489 (N.Y. App. Div. 1996)

Summary

holding that the defendants "failed to raise a triable issue of fact" and rejecting an estoppel defense to an action for foreclosure of mortgage where the defendants alleged an oral promise, but there was a provision in the written mortgage agreement barring oral modifications

Summary of this case from Capital One Nat'l Ass'n v. 48-52 Franklin, LLC

Opinion

September 9, 1996.

In an action to foreclose a mortgage on real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated November 17, 1995, which denied those branches of its motion which were for summary judgment against the defendants VRD Realty Corp. and Vincent R. DeAngelis and to appoint a Referee to compute the amount due to it.

Before: Bracken, J. P., Copertino, Pizzuto and Goldstein, JJ.


Ordered that the order is reversed, on the law, with costs, those branches of the motion which were for summary judgment against the defendants VRD Realty Corp. and Vincent R. DeAngelis and to appoint a Referee to compute the amount due to the plaintiff are granted, and the matter is remitted to the Supreme Court, Suffolk County, to appoint a Referee to compute the amount due to the plaintiff and to determine that branch of the motion which was for leave to enter a default judgment against the defendants Nassau Suffolk Lumber Supply Corporation and the People of the State of New York.

The plaintiff moved for summary judgment against the defendants VRD Realty Corp. and Vincent R. DeAngelis, to appoint a Referee to compute the amount due to it, and for leave to enter a default judgment against the defendants Nassau Suffolk Lumber Supply Corporation and the People of the State of New York. In its order dated November 17, 1995, the Supreme Court denied those branches of the plaintiff's motion which were for summary judgment against the defendants VRD Realty Corp. and Vincent R. DeAngelis and to appoint a Referee to compute the amount due to the plaintiff, but failed to determine that branch of the motion which was for leave to enter a default judgment against the defendants Nassau Suffolk Lumber Supply Corporation and the People of the State of New York. Accordingly, the matter is remitted to the Supreme Court, Suffolk County, to determine that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants Nassau Suffolk Lumber Supply Corporation and the People of the State of New York ( see, Katz v Katz, 68 AD2d 536).

In April 1990 the defendant VRD Realty Corp. (hereinafter VRD) executed a promissory note and a mortgage on real property in favor of the plaintiff. By its terms, the mortgage could only be modified in an agreement in writing signed by the party to be charged with the modification. VRD defaulted in July 1994.

The plaintiff established its prima facie entitlement to foreclosure as a matter of law by submitting evidence of the execution of the note and mortgage and VRD's failure to make payment in accordance with its terms ( see, Great W. Bank v Terio, 200 AD2d 607; First Natl. Bank v J. J. Milano, 160 AD2d 670). Although VRD contends that the plaintiff should be estopped from foreclosing the mortgage based on an alleged oral agreement to reduce the interest rate on the debt, there is a mortgage provision barring oral modifications ( see, General Obligations Law § 15-301) and correspondence indicating that the agreement would not be binding until it was reduced to writing. Because VRD failed to raise a triable issue of fact, the plaintiffs motion for summary judgment should have been granted ( see, Zuckerman v City of New York, 49 NY2d 557, 562).

The respondents' remaining contentions are without merit.


Summaries of

FGH Realty Credit Corp. v. VRD Realty Corp.

Appellate Division of the Supreme Court of New York, Second Department
Sep 9, 1996
231 A.D.2d 489 (N.Y. App. Div. 1996)

holding that the defendants "failed to raise a triable issue of fact" and rejecting an estoppel defense to an action for foreclosure of mortgage where the defendants alleged an oral promise, but there was a provision in the written mortgage agreement barring oral modifications

Summary of this case from Capital One Nat'l Ass'n v. 48-52 Franklin, LLC
Case details for

FGH Realty Credit Corp. v. VRD Realty Corp.

Case Details

Full title:FGH REALTY CREDIT CORP., Formerly Known as FRIESCHGRONINGSCHE…

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

Date published: Sep 9, 1996

Citations

231 A.D.2d 489 (N.Y. App. Div. 1996)
647 N.Y.S.2d 229

Citing Cases

People's United Bank v. Hallock Landing Assocs., LLC

Generally, a written agreement which includes a proscription against oral modifications can only be changed…

Courchevel 1850 LLC v. 464 Ovington LLC

Summary judgment in a mortgage foreclosure action brought under New York law is generally appropriate where…