Summary
explaining that New York courts uniformly enforce unambiguous non-waiver clauses
Summary of this case from Sher v. RBC Capital Markets, LLCOpinion
No. 190 SSM 23.
Decided September 17, 2009.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered January 8, 2009. The Appellate Division modified, on the law, an order of the Supreme Court, New York County (Barbara R. Kapnick, J.; op 2007 NY Slip Op 32132[U]), which had granted plaintiff summary judgment on his claim to foreclose on certain mortgages, dismissed defendant's first, second and third affirmative defenses and two counterclaims, and struck defendant's claim for punitive damages. The modification consisted of denying plaintiffs motion for summary judgment on his foreclosure claim, reinstating the first and second counterclaims and reinstating the first affirmative defense. The Appellate Division affirmed the judgment as modified. The following question was certified by the Appellate Division: "Was the order of this Court, which modified the order of the Supreme Court, properly made?"
Rosenzweig v Givens, 62 AD3d 1, affirmed.
Marc E. Elliott, P.C., New York City ( Marc E. Elliott of counsel), for appellant.
Law Offices of Barbara H. Katsos, P.C., New York City ( Barbara H. Katsos of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
In connection with the mortgage foreclosure action, defendant has alleged sufficient facts to warrant denial of plaintiffs prediscovery motion for summary judgment, having asserted that plaintiff, an attorney who was then her par-amour, secured the mortgage through fraud and overreaching and by exploiting a fiduciary relationship with her ( see generally Matter of Greiff 92 NY2d 341, 345). She contends that, under the guise of buying her a condominium, he induced her to enter into a mortgage arrangement whereby he was the lender and she the borrower. Furthermore, plaintiff hired a friend to represent them both at the closing. Defendant claims that plaintiff paid all expenses related to the condominium and did not seek mortgage payments or any other contribution from defendant until three years later" after their marriage and defendant's subsequent discovery that plaintiff already had a wife and two children, rendering their marriage bigamous. Plaintiff then demanded payment, accelerated the loan and pursued foreclosure against defendant. We also conclude that defendant has stated a prima facie case of fraudulent inducement to marriage ( see Blossom v Barrett, 37 NY 434; see also Tuck v Tuck, 14 NY2d 341, 344).
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.