The defense of waiver was also barred by the terms of the mortgages ( see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, lv dismissed 2 NY3d 794). Atlantic Bank's counterclaim for equitable subrogation and priority of lien, based on its payment of tax liens, was properly dismissed in light of its knowledge of plaintiff's mortgages ( see Roth v Porush, 281 AD2d 612, 614) and its failure to inquire in the face of the borrower's assertion that the mortgage was unenforceable. After due consideration, I also find appellants' other contentions meritless.