Calce v. Futterman

603 N.Y.S.2d 9 | N.Y. App. Div. | 1993

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered September 19, 1991, which, inter alia, granted defendants’ motion for summary judgment dismissing the causes of action relating to the interpretation of the prepayment provision of the mortgage and denied plaintiffs’ cross motion for summary judgment; and from an order and judgment of the same court and Justice, entered July 26, 1992, which dismissed the petition pursuant to RPAPL 1921 to compel acceptance of the mortgage balance and discharge and cancel a purchase money mortgage, unanimously affirmed, without costs.

In interpreting the parties’ intent as expressed by the language of the contract (see, Brayton v Pappas, 52 AD2d 187, 188), the court properly found that the prepayment provision of the mortgage, which provided that any prepayments "will be applied in inverse order”, required that the prepayments must be credited to the payments due at the end of the mortgage term. That is not inconsistent with the provision that prepayments were to be applied to reduction of principal. The fact that this negotiated clause, inartfully drafted as it was, may have favored the lender, in a transaction wherein both parties were represented by counsel, does not render the provision ambiguous or the mortgage loan usurious. The court also properly denied the application to discharge and cancel the mortgage on the grounds of res judicata, collateral estoppel, and law of the case (see, Ryan v New York Tel. Co., 62 NY2d 494). Concur—Wallach, J. P., Ross, Asch and Rubin, JJ. [As amended by order entered Feb. 8, 1994.]