78 A.D.2d 648 | N.Y. App. Div. | 1980
In a mortgage foreclosure action, defendant Ramapo Improvement Corp. appeals from (1) an order of the Supreme Court, Rockland County (Burchell, J.), entered September 29, 1978, which, inter alia, granted plaintiffs motion for severance and partial summary judgment on past due interest and' taxes and denied its cross motion for summary judgment, and (2) a judgment of the same court (Walsh, J.), entered May 25, 1979, which, inter alia, ordered partial foreclosure and sale of the real property in question subject to a continuing lien of the mortgage in the amount of the unpaid principal. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment affirmed. Plaintiff is awarded one bill of $50 costs and disbursements to cover both appeals. In May, 1972 plaintiff Ruth Golden accepted a purchase-money mortgage and mortgage note from defendant Ramapo Improvement Corporation (hereinafter defendant) in the amount of $240,000, representing the balance due for the sale of an approximately 40-acre parcel of land simultaneously conveyed by plaintiff to defendant. The mortgage specified that any payments made under its provisions for releasing parcels from the mortgage would be credited against amortization payments as they fell due under a schedule calling for installments of $10,600 every August 31, starting in 1974, with the balance due on August 31, 1979. The mortgage also granted plaintiff an option to accelerate the payment of the entire principal upon a default in payments of principal, interest or taxes. In her complaint plaintiff alleged (without denial by defendant) a default in payments of quarterly interest installments for 1976 and 1977, taxes for the periods 1975-1976 and 1976-1977, and principal installments for 1976 and 1977. She elected to accelerate the remainder due under the mortgage. The record shows, however, that payments for releases granted by plaintiff had amounted to $86,185 as of the date the first installment of principal fell due, and amounted to $95,125 by the end of January, 1976; the remainder was $144,875. In applying these release payments against the amounts due under the amortization schedule, it appears that defendant was not, in fact, in arrears at any time as to the principal. Possibly for this reason, by notice of motion dated April 27, 1978, plaintiff moved for a severance and for partial summary judgment on so much of her claim as sought foreclosure and sale for all payments due as of October 20, 1976, when defendant had been formally notified of its default pursuant to the terms of the mortgage. Initially stating that the debt then due included interest and taxes, "as well as the total principal of the mortgage which has become due by reason of the election by plaintiff to declare the entire principal due”, her motion sought judgment without necessity for a reference to compute, and clarified her intentions by stating that she has "not sought judgment of foreclosure by reason of the admitted failure to make additional interest, principal and tax payments and reserves