| North Bright Capital, LLC v 705 Flatbush Realty, LLC |
| 2009 NY Slip Op 07809 [66 AD3d 977] |
| October 27, 2009 |
| Appellate Division, Second Department |
| North Bright Capital, LLC, Respondent, v 705 FlatbushRealty, LLC, et al., Appellants, et al., Defendants. |
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In an action to foreclose a mortgage, the defendants 705 Flatbush Realty, LLC, and EliWeinstein appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Held, J.), dated August 27, 2008, as granted the plaintiff's motion for summaryjudgment on the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, North Bright Capital, LLC (hereinafter North Bright), was entitled byassignment to the payment of a mortgage and note from the defendants 705 Flatbush Realty,LLC, and Eli Weinstein (hereinafter together the defendants). The Supreme Court granted NorthBright's motion for summary judgment, and the defendants appeal. We affirm.
North Bright established its prima facie entitlement to summary judgment by providingevidence of the assignment, the mortgage, the note, and the defendants' default (see Countrywide Home Loans, Inc. vDelphonse, 64 AD3d 624, 625 [2009]; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239,244-245 [2007]; Marculescu vOvanez, 27 AD3d 701 [2006]).
In opposition, the defendants failed to raise a triable issue of fact. The mortgage providesthat its terms could not be changed except by a writing signed by the party against whom achange is sought to be enforced. The defendants did not dispute the nonpayment of moneys due,but instead argued that the parties had orally agreed to a forbearance, on which basis NorthBright should be estopped from proceeding with the foreclosure. However, any forbearancediscussed by the parties is not enforceable absent a writing signed by North Bright, as requiredby the mortgage (see Chemical Bank v Broadway 55-56th St. Assoc., 220 AD2d 308[1995]) and by the statute of frauds (see General Obligations Law § 15-301 [1];Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 795 [2002]). The defendants failed toproffer any written forbearance agreement.[*2]
Although the defendants argue that they fall within oneof the recognized exceptions to the statute of frauds, based upon Northbright's alleged admissionto the Supreme Court that the parties had discussed a forbearance of the mortgage and note, thisargument is unavailing. As the parties dispute the very terms and conditions of the alleged oralforbearance, their discussions do not qualify as a substitute for the required writing (see FleetBank v Pine Knoll Corp., 290 AD2d at 795; Dzek v Desco Vitroglaze ofSchenectady, 285 AD2d 926, 927 [2001]; Jump v Jump, 268 AD2d 709, 710[2000]). Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.