| Bank of Smithtown v 264 W. 124 LLC |
| 2013 NY Slip Op 02347 [105 AD3d 468] |
| April 9, 2013 |
| Appellate Division, First Department |
| Bank of Smithtown, Appellant, v 264 West 124LLC et al., Respondents. |
—[*1]
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or aboutNovember 4, 2011, which denied plaintiff's motion for summary judgment as againstdefendants 264 West 124 LLC and Shlomo Levi, unanimously reversed, on the law, withcosts, the motion granted, the counterclaims dismissed, the matter remanded for furtherproceeding, and People's United Bank substituted as plaintiff in the action.
Plaintiff demonstrated an entitlement to summary judgment by producing the noteand mortgage and the uncontested proof of default, as well as the personal guarantysigned by defendant Levi as additional collateral for the mortgage (see HypoHoldings v Chalasani, 280 AD2d 386 [1st Dept 2001], lv denied 96 NY2d717 [2001]).
Defendants failed to raise a triable issue of fact as to any defense to foreclosure(see Marine Midland Bank v Fillippo, 276 AD2d 601 [2d Dept 2000]). Theuncorroborated affidavit from defendant Levi that plaintiff had orally agreed to modifythe terms of the loan and that it should be estopped was insufficient because the note andmortgage prohibited oral modifications to the loan, and thus, even accepting the truth ofLevi's allegations, any oral agreement was fundamentally ineffectual in modifying theloan (see CrossLand Sav. v Loguidice-Chatwal Real Estate Inv. Co., 171 AD2d457 [1st Dept 1991]).
Nor did defendants establish that the principles of equitable estoppel or partialperformance apply because they did not materially alter their position based on anyalleged oral modification, and their payment of common charge arrears was notunequivocally referable to the oral modification nor incompatible with the writtenagreement (see Rose v Spa Realty Assoc., 42 NY2d 338, 343-345 [1977]).Payment of the common charge arrears was "reasonably explained" by their legalobligation to make those payments (Anostario v Vicinanzo, 59 NY2d 662, 664[1983]).
Nor does the claim of unclean hands require denial of summary judgment. Evenaccepting the truth of Levi's allegations, plaintiff was under no obligation to modify theloan or to comply with any oral agreement, and there is nothing immoral orunconscionable about its decision to proceed with foreclosure.
Defendants' reliance on the prenegotiation letter is unavailing. The letter did notrequire plaintiff to modify the loan and reserved all of plaintiff's rights. The letter alsoauthorized plaintiff to terminate participation in negotiations at any time, for any reasonor no reason.[*2]
Following the commencement of this action,People's United Bank merged with Bank of Smithtown and is now the owner of thesubject note. Thus, we substitute it as plaintiff. Concur—Mazzarelli, J.P., Acosta,Renwick, Richter and Gische, JJ.