Opinion
May 30, 1975
Appeal from the Erie County Court.
Present — Cardamone, J.P., Simons, Mahoney, Goldman and Del Vecchio, JJ.
Order unanimously reversed, with costs, and motion denied. Memorandum: This is an appeal from an order of Special Term Erie County Court which dismissed appellants' counterclaim and affirmative defenses interposed in response to respondent's (Marine Midland Bank-Western) action to foreclose upon a mortgage securing a principal indebtedness in the amount of three million dollars owed to the respondent bank by appellant Center of Williamsville, Inc. In our opinion the pleadings as amplified by the affidavits present issues of fact, which preclude summary judgment, on the third affirmative defense as to whether the bank by its conduct induced the appellants to believe that they would be given additional time, beyond the agreed upon due date, to obtain substitute financing, and whether such belief by the appellants was reasonable and acted upon by them to their prejudice thereby estopping the respondent from foreclosing its mortgage without further notice (see Arnot v Union Salt Co., 186 N.Y. 501; Thomson v Poor, 147 N.Y. 402; Royce v Rymkevitch, 29 A.D.2d 1029; Krebs v Carpenter, 124 App. Div. 755; Korpacz v 120 Middleton Realty Corp., 217 N.Y.S.2d 779; see, also Wiltsie, Mortgages [5th ed], vol. 1, § 172, pp 294-295). This case should proceed immediately to trial to avoid undue prejudice to respondent by further delay.