Opinion
March 18, 1996
Appeal from the Supreme Court, Nassau County (McCarty, J.).
Ordered that the appeal from the order entered January 19, 1995, is dismissed; and it is further,
Ordered that the order and judgment entered May 31, 1994, is modified, on the law, by adding thereto a provision declaring that the mortgages held by the defendants were not satisfied by the plaintiff's payment into court of the sum of $372,671.48; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff's motion, characterized as one to vacate the judgment based on newly discovered evidence, was not based upon new facts which were unavailable at the time of the original motion and was therefore actually a motion to reargue, the denial of which is not appealable (see, e.g., Mgrditchian v Donato, 141 A.D.2d 513; Matter of Bosco, 141 A.D.2d 639; Matter of Kadish v Columbo, 121 A.D.2d 722).
The Supreme Court correctly concluded that the plaintiff never tendered the amount due for principal and interest on the mortgages (see, Bank of N.Y. v Midland Ave. Dev., 193 A.D.2d 641, 642; Jamaica Sav. Bank v Sutton, 42 A.D.2d 856; 1 Bergman, New York Mortgage Foreclosures § 4.08). The plaintiff's contention that tender was excused because the mortgagee was unable to perform is not supported by the record. While approval of the California court was required to release the mortgage liens because the partnership to which the mortgages had been assigned was an asset of an insurance company in liquidation, the defendants had advised the plaintiff that they were taking the necessary steps to obtain such approval and also provided escrow instructions, which the plaintiff declined to follow. Accordingly, since there was never a payment or a tender of the full amount due, which included the interest that continued to accrue, the defendants did not improperly refuse to execute satisfaction pieces (see, RPAPL 1921; Household Fin. Realty Corp. v Delmerico, 202 A.D.2d 636, 637; Barclay's Bank v Market St. Mtge. Corp., 187 A.D.2d 141, 144-145).
The plaintiff's remaining contentions are without merit.
Further, contrary to the defendants' claim, the court properly denied their application for attorneys' fees and costs, since the language in the mortgage and the note relied upon by the defendants did not entitle them to recover attorneys' fees and costs under these circumstances (cf., Emery v Fishmarket Inn, 173 A.D.2d 765).
We note that since the complaint, inter alia, sought a declaration that the plaintiff's payment into court of $372,671.48 satisfied the mortgages at issue, the Supreme Court should have directed the entry of a declaration in favor of the defendants rather than dismissal of that cause of action (see, Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Rosenblatt, J.P., Miller, Ritter and Sullivan, JJ., concur.