Summary
In Maher, for example, the appellate division held that a waiver of a mortgagor's § 320 rights through a court-approved stipulation was ineffective because "it is settled that deeds given in security for the payment of a debt are mortgages" and "plaintiffs cannot waive their right of redemption even by stipulation in open court, since public policy forbids such a waiver."
Summary of this case from First Union Baptist Church of the Bronx v. TD Capital Grp. LLC (In re First Union Baptist Church of the Bronx)Opinion
June 18, 1979
In an action, inter alia, to declare a certain written instrument executed by plaintiffs to be a mortgage and not an absolute conveyance of the premises described therein, in which action summary judgment was granted defendants upon plaintiffs' default, plaintiffs appeal from an order of the Supreme Court, Rockland County, dated August 2, 1978, which denied their motion to vacate their default. Order reversed, without costs or disbursements, and motion to vacate granted. Special Term denied plaintiffs' motion to open their default on the ground that their action, to declare a certain writing executed by them and placed in escrow to be delivered on their default in the payment of their obligations under mortgages encumbering the real property which is the subject of the writing was a mortgage, was without merit. We cannot say on this record that the action is patently without merit, for it is settled that deeds given in security for the payment of a debt are mortgages (Real Property Law, § 320). The plaintiffs cannot waive their right of redemption even by a stipulation in open court, since public policy forbids such a waiver (see Hughes v. Harlam, 166 N.Y. 427, 432; Mooney v. Byrne, 163 N.Y. 86, 92-93). The equities of the parties may be adjusted in the action (cf. Wallace v. McCabe, 41 Misc.2d 483, 484-485). Mollen, P.J., Hopkins, Titone, O'Connor and Shapiro, JJ., concur.