Opinion
April 15, 1975
Order, Supreme Court, New York County, entered December 13, 1974, denying the plaintiff-appellant's motion for summary judgment, unanimously modified, on the law, to dismiss the first, second and fifth affirmative defenses, and otherwise affirmed, without costs and without disbursements. The certificate of the Secretary of State that the plaintiff was licensed in New York as a real estate broker disproves the contrary allegation of the first affirmative defense. The second affirmative defense, that the loan commitment procured by the plaintiff was conditional and the defendant could not meet the condition, is untenable since the defendant accepted the commitment proposed (Cushman Wakefield v Dollar Land Corp. [L.S.], 44 A.D.2d 445). There is no evidence to support the fifth affirmative defense that the plaintiff represented that the proposed lender would waive its requirement that the lease be subordinated to its lien. The defendant's acceptance of the loan commitment and the loan application prove the contrary.
Concur — Markewich, J.P., Murphy, Tilzer, Lane and Lynch, JJ.