101 A.D.2d 770 | N.Y. App. Div. | 1984
Order of the Supreme Court, Bronx County (Irwin M. Silbowitz, J.), entered on December 16, 1983, which granted the motion by plaintiff-respondent Massachusetts Mutual Life Insurance Company for a summary judgment of foreclosure on the mortgage encumbering the subject property, formerly known as the “Korvette’s Shopping Center” in The Bronx, is unanimously reversed, on the law, and the motion denied, with costs and disbursements. U Plaintiff, the present holder of a first mortgage on the subject premises, has moved for a summary judgment of foreclosure. It is plaintiff’s contention that defendant Transgrow Realty Corporation, the current title holder of the property, as well as its predecessors in title, has committed multiple defaults under the mortgage and extension agreement, entitling plaintiff to accelerate the principal balance due and to commence the instant proceeding upon Transgrow’s failure to pay the entire indebtedness upon demand. According to plaintiff, the breaches at issue involve such matters as Transgrow’s failure to make major repairs and halt the continuing deterioration of the building, permitting real estate taxes to fall into serious arrears, defendants’ refusal to submit certain required financial statements and furnish annual audited financial reports, and the assignment of Korvette’s lease in 1981 in violation of a nonassignment clause. There is, however, no claim of a monetary default under the loan. 11 The general rule is that a mortgagor is bound by the terms of the contract and cannot be relieved of a default in the absence of a waiver by the mortgagee, or estoppel, bad faith, fraud, oppressive or unconscionable conduct on the latter’s part. {Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175.) Nevertheless, when a plaintiff moves for summary judgment, “it is proper for the court to look beyond the defendant’s answer and deny summary judgment if facts are alleged in opposition to the motion which, if true, constitute a meritorious defense” {Nassau Trust Co. v Montrose Concrete Prods. Corp., supra, at p 182). An examination of the record in the instant case reveals that while there may