| Inland Mtge. Capital Corp. v Realty Equities NM, LLC |
| 2010 NY Slip Op 02750 [71 AD3d 1089] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Inland Mortgage Capital Corp., Appellant, v RealtyEquities NM, LLC, et al., Respondents. |
—[*1] McMillan, Constable, Maker & Perone, LLP, Larchmont, N.Y. (William Maker, Jr., ofcounsel), for respondents.
In an action to recover the proceeds of a loan and upon a personal guaranty, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Lefkowitz, J.), entered January 14, 2009, as denied that branch of its motion which wasfor summary judgment on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability isgranted.
In December 2006, in connection with its ownership and planned renovation of a shoppingcenter, the defendant Realty Equities NM, LLC (hereinafter Realty Equities), obtained a loanfrom the plaintiff, Inland Mortgage Capital Corp. (hereinafter Inland), evidenced by two notestotaling the sum of $10,200,000. The maturity date of the notes was June 30, 2008. Thedefendant G. Warren Schloat III executed a personal guaranty with respect to the loan. In April2008 the parties signed a forbearance agreement, in which, inter alia, Realty Equities and Schloatacknowledged their default with respect to the loan, agreed to pay Inland the principal andinterest due under the notes as well as other sums by the maturity date, and waived the right toassert any defenses, setoffs, or counterclaims against Inland. When the defendants did notcomply with the terms of the forbearance agreement, Inland commenced this action, andeventually moved, among other things, for summary judgment on the issue of liability. TheSupreme Court denied that branch of the motion, finding that there were triable issues of fact.We reverse.
Inland established its prima facie entitlement to judgment as a matter of law by submittingproof of the existence of the notes, the guaranty and the forbearance agreement, and thedefendants' default (see JP Morgan Chase Bank, N.A. v Agnello, 62 AD3d 662, 663[2009]). In opposition, the defendants failed to raise a triable issue of fact as to the validity of theforbearance agreement (see Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-11[1988]; Stewart M. Muller Constr. Co. v New York Tel. Co., 40 NY2d 955, 956 [1976];Marine Midland Bank v Hallman's Budget Rent-A-Car of Rochester, 204 AD2d 1007,1008 [1994]; cf. Art Stone Theat. Corp. v Technical Programming & Sys. Support of LongIs., 157 AD2d [*2]689, 691 [1990]), or their failure to paythe amounts due thereunder. Moreover, inasmuch as the defendants effectively waived their rightto assert defenses with respect to the notes, the defenses they now assert are insufficient to raisea triable issue of fact (see North Fork Bank v Computerized Quality Separation Corp., 62AD3d 973, 974 [2009]; Fleet Bank v Petri Mech. Co., 244 AD2d 523, 524 [1997]).
The defendants' remaining contentions are without merit. Fisher, J.P., Covello, Lott andSgroi, JJ., concur.