Opinion
June 7, 1990
Appeal from the Supreme Court, New York County (Irving Kirschenbaum, J.).
In the underlying action, plaintiff Briarwood Towers 85th Company, a New York limited partnership which sold certain parcels of real property and an apartment house complex to respondent Moral Five Corporation, sought to recover $1,183,296, allegedly due and payable as a result of respondents' refusal to satisfy a duly executed purchase-money wrap-around promissory note in the original amount of $5,500,000.
Upon review of the record, we find that the Supreme Court did not err in finding, on the basis of the credible testimony and documents received in evidence at trial, that plaintiff had stopped making payments to the underlying mortgagees in 1977, three years prior to any alleged default by respondents; that the $5.5 million wrap-around note was, by its own terms, one with nonrecourse against the maker, respondent Moral Five Corporation; that by neglecting to record the mortgage, plaintiff had failed to protect the collateral and that plaintiff's sole remedy was, therefore, to proceed against the collateral securing the note. In any event, we note that plaintiff had impaired the collateral by acquiescing in the sale of the subject property from respondent Moral Five Corporation to respondent City Partners, Ltd. "subject to mortgages, liens and encumbrances of record", and suffered no monetary damage as a consequence of any default or impairment of the collateral by respondents.
Concur — Ross, J.P., Milonas, Rosenberger, Kassal and Rubin, JJ.