Opinion
May 19, 1994
Appeal from the Supreme Court, Putnam County (Hickman, J.).
In return for a $175,000 loan, various defendants, who are joint venturers in a project known as defendant Peach Lake Plaza (hereinafter collectively referred to as defendants), gave plaintiff a one-year promissory note secured by a second mortgage. Upon defendants' failure to repay the loan, plaintiff commenced this action to foreclose the mortgage and, following the service of defendants' answer, moved for summary judgment. Supreme Court granted the motion, finding that defendants' defenses were precluded by the parol evidence rule. This appeal ensued.
The focus of this appeal is whether defendants have bona fide defenses to this action because the record discloses that plaintiff made a prima facie showing of entitlement to summary judgment (see, Northeast Sav. v. Rodriguez, 159 A.D.2d 820, appeal dismissed 76 N.Y.2d 889).
Defendants' principal defense is predicated upon the doctrine of equitable estoppel, which may be established by extrinsic evidence despite the existence of a written contract (see, Hoffman v. Brokers' Marketplace, 105 A.D.2d 1082, 1083). To establish this defense defendants relied on the affidavit of defendant Jerome Terracino, who averred that the promissory note was supposed to be payable in two years rather than one year. Allegedly, when he raised this point at the closing, a bank officer told him not to be concerned because the note would be renewed at the end of the year under the same terms. Relying on this assurance defendants completed the transaction, purportedly to their detriment because the note was not renewed. This proof falls short of establishing an equitable estoppel defense because it is devoid of any facts explaining how defendants prejudicially changed their position in reliance upon plaintiff's assurances (see, Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184; Dimacopoulos v. Consort Dev. Corp., 166 A.D.2d 631, 632; Chadirjian v. Kanian, 123 A.D.2d 596).
Inasmuch as plaintiff was not contractually obligated to extend the loan for another year, the defense that it breached the implied duty of good faith and fair dealing lacks merit. The defense of unclean hands also lacks merit due to defendants' failure to come forward with admissible evidence showing that plaintiff's conduct was immoral or unconscionable (see, National Distillers Chem. Corp. v. Seyopp Corp., 17 N.Y.2d 12, 15; City of New York v. Corwen, 164 A.D.2d 212, 218).
We have not considered defendants' argument that plaintiff fraudulently induced them to enter into the mortgage transaction because they did not raise it before Supreme Court, nor did they include it as an affirmative defense in their answer (see, CPLR 3018 [b]; Matter of Town of Minerva v. Essex County Indus. Dev. Agency, 173 A.D.2d 1054, 1055, lv denied 78 N.Y.2d 857).
For these reasons, we affirm.
Cardona, P.J., Casey, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, with costs.