From Casetext: Smarter Legal Research

Heller Financial v. Apple Tree Realty Assoc

Appellate Division of the Supreme Court of New York, First Department
Apr 15, 1997
238 A.D.2d 198 (N.Y. App. Div. 1997)

Opinion

April 15, 1997


Order, Supreme Court, New York County (Lewis Friedman, J.), entered May 2, 1995, which, to the extent appealed from, granted plaintiff's and additional counterclaim defendant's motion for summary judgment of foreclosure, struck the answer and counterclaims of defendants-appellants and appointed a Referee to compute the amount due upon the note and mortgage, unanimously affirmed, with costs.

Waiver of right to foreclose under Nassau Trust Co. v. Montrose Concrete Prods. Corp. ( 56 N.Y.2d 175) requires a specific, identifiable promise ( see, Blittner v. Friesch-Groningshe Hypotheebank Realty Credit Corp., 221 A.D.2d 152). Here, the lenders kept their promise to afford the borrowers a limited, conditional accommodation. The lenders did not prevent the condition's fulfillment ( cf., Long Is. Sav. Bank v Geloda/Briarwood Corp., 235 A.D.2d 301). A promise to keep negotiating afterward, even if made, would not be specific enough to effect a waiver of the right to foreclose ( see, Massachusetts Mut. Life Ins. Co. v. Gramercy Twins Assocs., 199 A.D.2d 214, 217). The fraud claims are meritless because lenders made no binding commitment ( see, Kirk/Marsland Adv. v. Cunard Line, 188 A.D.2d 440). The negligent misrepresentation claim was properly rejected because there is no evidence of a relationship of special confidence and trust ( see, Kimmell v. Schaefer, 89 N.Y.2d 257, 263), or of any misrepresentation. We have considered defendants-appellants' remaining arguments and find them to be without merit.

Concur — Rosenberger, J.P., Ellerin, Tom and Mazzarelli, JJ.


Summaries of

Heller Financial v. Apple Tree Realty Assoc

Appellate Division of the Supreme Court of New York, First Department
Apr 15, 1997
238 A.D.2d 198 (N.Y. App. Div. 1997)
Case details for

Heller Financial v. Apple Tree Realty Assoc

Case Details

Full title:HELLER FINANCIAL, INC., Respondent, v. APPLE TREE REALTY ASSOCIATES et…

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

Date published: Apr 15, 1997

Citations

238 A.D.2d 198 (N.Y. App. Div. 1997)
656 N.Y.S.2d 247

Citing Cases

U.S. Bank Nat'l Ass'n v. Rab

Defendant's sixteenth affirmative defense alleges that the plaintiff waived enforcement of the terms of the…

U.S. BANK NATL. ASSN. v. 23RD ST. DEV., LLC

With respect to post-August 20, 2008 negotiations, as in Massachusetts Mutual Life Insurance Company v.…