618 NYS2d 744 | N.Y. Sup. Ct. | 1994
OPINION OF THE COURT
Motion by plaintiff for summary judgment is denied.
The mortgage defines "Lender” solely as "Midlantic Home Mortgage Corporation.” Real Property Law § 254 (2) requires that the term "Lender” be construed to include "the mortgagee or obligee, his executors, administrators, successors or assigns”. Thus the term "Lender” cannot be expanded beyond Midlantic or the construction provided by Real Property Law § 254. Midcoast is neither the Lender, nor its successor or assign. On this motion, plaintiff offers only the affidavit of Charles H. Kosowicz, the assistant vice-president of foreclosures and bankruptcies of Midcoast, to establish that Midcoast is the agent for plaintiff. It is hornbook law that an agent’s authority may not be proven out of the mouth of the agent (Lexow & Jenkins v Hertz Commercial Leasing Corp., 122 AD2d 25; Moore v Leaseway Transp. Corp., 65 AD2d 697, affd 49 NY2d 720).
Plaintiff further contends that, as its agent, Midcoast had authority to send the notice of default, citing as authority Central Trust Co. v Sheahen (66 AD2d 1015), and quoting so much of the decision that holds that "an agent may be appointed to do the same acts and to achieve the same legal consequences as if the principal had himself personally acted”. That sentence continues, however, to exclude acts which by contract require personal performance (see also, 2 NY Jur 2d, Agency, § 17, at 479). The mortgage contains no provision which would permit the sending of the notice of default, which is specifically required to be sent by "Lender,” by an agent of the Lender.
It is well settled that where a lease requires a notice of default to be sent by the "landlord,” any notice sent by the landlord’s agent is ineffective unless accompanied by proof of the agent’s authority to bind the landlord (see, Siegel v Ken
The mortgage unambiguously provides that the sending of a notice of default conforming with the mortgage provisions is a condition precedent to acceleration of the mortgage. Unless and until plaintiff can demonstrate that (a) Midcoast was its agent; and (b) that defendants Korngold had reason to know that Midcoast had authority to act on its behalf, thus rendering the notice of default valid, plaintiff is precluded from accelerating the mortgage through its failure to comply with the conditions precedent in paragraph 19 of the mortgage.