Opinion
April 29, 1996
Appeal from the Supreme Court, Rockland County (Rudolph, J.).
Ordered that the appeal from the unsigned order dated April 26, 1995, is dismissed as no appeal lies therefrom; and it is further,
Ordered that the order dated March 9, 1995, is affirmed; and it is further,
Ordered that the order entered May 31, 1995, is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
On July 18, 1988, the defendants Hilda Pekofsky and Nathan A. Pekofsky borrowed $4 million, secured by a consolidated mortgage on property located in Nanuet, New York, in favor of the plaintiff Crossland Federal Savings Bank. On the maturity date of the loan, the Pekofskys did not pay off the loan.
The plaintiff commenced this foreclosure action against the defendants, and a receiver was appointed. The Pekofskys moved to terminate the receiver and for an accounting. The receiver cross-moved to compel the Pekofskys to turn over certain rents that they had collected upon the termination of a 20-year lease with Chi-Chi's Restaurant. The Supreme Court denied the Pekofskys' motion and granted the cross motion. Thereafter, the plaintiff moved for summary judgment, which was granted.
On appeal, the defendants argue that the Supreme Court erred in granting the receiver's cross motion for the turnover of the rents and in granting summary judgment of foreclosure to the plaintiff.
Even in the absence of fraud or collusion, an agreement by the mortgagor with respect to the mortgaged property may not be binding upon the mortgagee or the receiver where the agreement contravenes an express covenant or the necessary implications of a prior recorded mortgage ( see, e.g., Bank of Manhattan Trust Co. v. 571 Park Ave. Corp., 263 N.Y. 57; New York City Community Preservation Corp. v. Michelin Assocs., 115 A.D.2d 715).
Here, the mortgage required that the Pekofskys had to obtain the consent of the plaintiff to terminate the lease, which they did not do. Because of the consent provision, the Pekofskys could not lawfully enter into the termination agreement with Chi-Chi's Restaurant and accept the lump sum payment ( see, e.g., New York City Community Preservation Corp. v. Michelin Assocs., supra, at 717-718). Further, while Chi-Chi's Restaurant had the right to terminate its lease at any time, it had to do so in the very specific manner provided in the lease and the termination agreement contravened the lease because the premises were not re-let by the Pekofskys. Therefore, Chi-Chi's Restaurant should have been obligated to pay the full rent as set forth in the lease.
Furthermore, the Supreme Court properly awarded the plaintiff summary judgment. In response to the plaintiff's showing, the evidence submitted by the Pekofskys on their six affirmative defenses and four counterclaims, which were based on a claimed breach of an option to extend repayment of the mortgage, did not raise a triable issue of fact which would bar summary judgment. O'Brien, J.P., Ritter, Hart and Goldstein, JJ., concur.