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Commonwealth Land Title Ins. Co. v. Leidner

Appellate Division of the Supreme Court of New York, Second Department
Jan 14, 1991
169 A.D.2d 699 (N.Y. App. Div. 1991)

Opinion

January 14, 1991

Appeal from the Supreme Court, Queens County (LeVine, J.).


Ordered that the order is affirmed insofar as appealed from, with costs.

At the time of the closing on the sale of their property, the appellants were unable to satisfy and discharge a mortgage held by the defendants Sam and Liba Elberger. In order to permit the closing to proceed, the appellants agreed to deposit $88,000 with the purchasers' title insurance company, the plaintiff in this action, to be held in escrow until a satisfaction of mortgage was obtained from the Elbergers. The deposit agreement between the plaintiff and the Leidners provided in pertinent part: "In the event that Depositor fails to comply with any of Depositor's obligations, Depositary may cause compliance therewith to be effected and pay out of the deposit the amount required to effect compliance including any expense, disbursement and/or counsel fees incurred in connection therewith. Notwithstanding any provision to the contrary, Depositary is authorized without notice to Depositor to accelerate Depositor's performance date at any time that Depositary, in its sole discretion, deems it advisable to do so to protect the title to the insured premises or the marketablility thereof".

Six months after the closing, upon the appellants' failure to provide a satisfaction of mortgage, the plaintiff paid out the funds in the account to the Elbergers and obtained a satisfaction of mortgage. The plaintiff commenced this action to determine the parties' rights under the deposit agreement when the Leidners and the Elbergers claimed that the amount paid to satisfy the mortgage was incorrect.

The only issue raised on appeal concerns the dismissal of the appellants' affirmative defense which alleged that payment was made to the Elbergers without their consent. We find that the plaintiff established that this affirmative defense is without merit, as the agreement specifically permits the plaintiff to act without notice to the appellants. Since the appellants failed to establish the existence of triable issues of fact, the court properly granted that branch of the plaintiff's motion which was for partial summary judgment dismissing this affirmative defense (see, Zuckerman v City of New York, 49 N.Y.2d 557). Thompson, J.P., Kunzeman, Lawrence and O'Brien, JJ., concur.


Summaries of

Commonwealth Land Title Ins. Co. v. Leidner

Appellate Division of the Supreme Court of New York, Second Department
Jan 14, 1991
169 A.D.2d 699 (N.Y. App. Div. 1991)
Case details for

Commonwealth Land Title Ins. Co. v. Leidner

Case Details

Full title:COMMONWEALTH LAND TITLE INSURANCE COMPANY, Respondent, v. MARTIN LEIDNER…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 14, 1991

Citations

169 A.D.2d 699 (N.Y. App. Div. 1991)