Opinion
March 6, 1984
Appeal from the Supreme Court, Wayne County, Parenti, J.
Present — Hancock, Jr., J.P., Denman, Boomer, Green and Moule, JJ.
Order and judgment unanimously affirmed, without costs. Memorandum: In this action to foreclose a collateral security mortgage defendants appeal from an order dismissing the affirmative defenses and granting summary judgment to plaintiff. The first affirmative defense is that defendant Mitchell was forced to give the collateral mortgage through economic duress, i.e., that plaintiff, who had financed defendant's auto dealership and held defendant's personal guarantee and a security interest in the vehicles, threatened to close defendant's business by enforcing the guarantee and security interest unless defendant signed the mortgage. Special Term properly dismissed that defense as a matter of law on the ground that "[t]he threatened exercise of a legal right cannot constitute duress" ( Marine Midland Bank v Stukey, 75 A.D.2d 713, aff'd. 55 N.Y.2d 633, citing Tarrytown Nat. Bank Trust Co. v Clark, 261 App. Div. 937; see Muller Constr. Co. v New York Tel. Co., 50 A.D.2d 580, aff'd. 40 N.Y.2d 955). Special Term also properly dismissed the second affirmative defense, that there was a lack of consideration. ¶ In responding to plaintiff's motion for summary judgment, defendant, for the first time, asserted that the mortgage had been obtained by duress because plaintiff had threatened to press criminal charges concerning a bad check issued by him. Defendant has waived that defense by failing promptly to disaffirm the contract and by accepting the benefits of the agreement for which the mortgage was given (see Marine Midland Bank v Stukey, supra; 1163 Realty Corp. v United Institutional Servicing Corp., 55 A.D.2d 908, 909; Grubel v Union Mut. Life Ins. Co., 54 A.D.2d 686). Moreover, duress based on threats of criminal prosecution should have been pleaded as an affirmative defense (see CPLR 3018, subd [b]; Bruechaud v Bank of New York Trust Co., 157 Misc. 375, 376; 25 Am Jur 2d, Duress and Undue Influence, § 30).